I appreciate the invitation to deliver the Dunwody Lecture this year, and I am grateful that this occasion has allowed me to visit, for the first time, one of the premier law schools in this Circuit and our nation. The Levin College of Law enjoys an excellent reputation for the education of lawyers. It is the alma mater of three judges of our court, and each year top graduates of this college serve our court with distinction as law clerks. I hope this visit will be the first of many to come for me.
My topic today is judicial modesty, which some critics of the federal judiciary might say is an oxymoron. After all, these critics, in recent years, have dubbed it “the imperial judiciary,” “the most dangerous branch,” and “our judicial oligarchy.” Modesty is not a typical charge against the federal courts.
This problem is not new. As far back as the early nineteenth century, the federal judiciary has had its critics. As historian Forrest McDonald has explained, “To most Jeffersonians, the federal judiciary stood as a barrier to the realization of the kind of society they envisioned for America . . . .” Thomas Jefferson described the judiciary as “[t]he great object of my fear,” and he may have been the first to call it “the most dangerous” branch. He mocked the federal judiciary as “our foreign department.”
Even in the eyes of the contemporary legal profession, the federal judiciary still often suffers from a reputation for pomposity and even arrogance. Consider the popularity of a parody sung by a group of lawyers from Austin, Texas, who moonlight as musicians and call themselves “The Bar and Grill Singers.” They entertain audiences at bar conferences with a tune entitled “Appointed Forever,” which is a remake of the song “Happy Together” by The Turtles. It begins,
Imagine me as God. I do.
I think about it day and night.
It feels so right.
To be a federal district judge and know that I’m
The chorus is even funnier and more biting:
I’m a federal judge and I’m smarter than you.
For all my life.
I can do whatever I want to do.
For all my life.
Contrast the reputation of the federal judiciary reflected in this musical parody with the sober requests of leading federal judges, in recent years, for an age of judicial modesty. This desire has been expressed by both Chief Justice John Roberts, Jr. and Circuit Judge Richard Posner. Their call has been widely praised.
I too welcome the call for an age of judicial modesty, and when you consider the contrast between the judiciary and the political branches, there is plenty about our unique branch that lends itself to the virtue of modesty. While judges shun cameras and microphones and protest legislative attempts to allow those implements of the news media into courtrooms, political officers rarely miss an opportunity to appear on broadcasts of the mass media. While politicians use the time-honored tool of a press conference, judges communicate through written opinions often published almost anonymously as “per curiam.” While politicians are watched closely for their appearances and fashions, judges are rarely seen by the public and then only at an elevated distance dressed in plain black robes.
Early on, Chief Justice John Marshall shunned political controversy when he wore a black robe as a statement of the need for judicial modesty. A biographer of Marshall, Jean Edward Smith, explained that Marshall led by example when he took the oath of office in February 1801:
Breaking with tradition, he wore a plain black robe in the republican fashion of the judges of the Virginia court of appeals. The other justices, Cushing, Chase, and Washington, were attired either in the traditional scarlet and ermine of the King’s Bench or their individual academic gowns-the “party-colored robes” of an oppressive judiciary, in the words of Senator Stevens Thomson Mason. By wearing black, Marshall was making a quiet statement. He had seen the Federalists self-destruct electorally through an excess of hubris, and he recognized that the Court was on shaky ground. Why flaunt the colors of the English judiciary when the black robes worn by Pendleton and Wythe would do just as well? The decision had symbolic importance, but the chief justice had another motive. Marshall was a small-r republican and he was uncomfortable with trappings of power.
I draw the contrast of the judiciary with the political branches not as a critic of politicians but as a former politician who respects their vital work. The officers of the political branches are not stewards of modest power; they develop national policies and must remain accessible and accountable to the people. When the judicial role of applying the law fairly and impartially is contrasted with the power and energy of the elected branches, the judiciary should be considered the modest branch.