POTUS, SCOTUS and “Judicial Humility”: a useful tip from @Judgenap


Anti-Catholicism is the last acceptable prejudice.

Check out the WSJ piece about the group to which Judge Amy Coney Barrett belongs.

Originally Published on: Jun 29, 2018

I’ve been looking at the list of the SCOTUS candidates from which the POTUS will choose a nominee.   There are some great people on that list.  You can see why the Left is having a spittle-flecked nutty.

Today I heard on the news that the POTUS is consider a couple of women from that list, which seems about right.

One which got my attention is Amy Coney Barrett, appointed by the POTUS to the 7th Circuit Court of Appeals.

During Barrett’s hearing before the Senate, she was attacked on religious grounds by Sen. Feinstein (D-CA) and Sen. Durbin (D-IL and decidedly PRO-ABORTION catholic who has been barred from Holy Communion by Bp. Paprocki.)   The US Constitution has in Article VI a No Religious Test Clause (c. 3).

Coincidentally, in this video another name on the SCOTUS list, and someone people are talking about right now, Sen. Mike Lee (R-UT) is asked about what Dicky and Di did to Barrett:

I wonder if they will reprise their previous bigoted performance.

Meanwhile, Judge Andrew Napolitano said something really interesting the other day about the POTUS’s vision for a SCOTUS Justice: they have to have “judicial humility“.

On FNC he said:

NAPOLITANO: I think, he’s going to narrow the list of 25 down to three. I think he will interview those three personally, and I think he will choose which one of the three he wants, and go with that person.

MACCALLUM: Who do you think those three are?

NAPOLITANO: He — I don’t know honestly, who they are. But I know their characteristics. They are all pro-life, they all believe in something called judicial humility, which is the recognition that the judiciary is the third branch of government. That the presidency and the Congress are more important. That they set public policy that it’s not the job of judges to set public policy, but just to interpret the law and to apply the Constitution to the laws that the Congress has written. A sort of deference if you will to the primacy of the other two branches.

As it turns out, judicial humility is a real thing, a term.   It also includes the issue of stare decisis. My searches on the interwebs produced some interesting reading, for example, something from Yale Law Journal, which includes:

The judicial humility10 this Essay seeks to reveal in Justice Thomas’s work has five core features: first, an insistence on reaching and pronouncing the correct interpretation of the law even when one disagrees with the result;11 second, persistence in the correct interpretation despite potential or actual backlash; third, a recognition of one’s own limitations and a resulting commitment to doctrines and practices that subordinate self to law; fourth, a willingness to admit mistakes; and finally, a foundation in faith.

Footnote 10 reads:

It may be helpful to distinguish this kind of judicial humility from judicial restraint. Judicial restraint might lead a judge to proceed incrementally toward correcting a law, lest the judge exercise too much power or appear “activist.” Judicial humility requires something a bit different: most basically, it requires a subordination of self to some higher authority. In Justice Thomas’s case, the subordination of self is to law, specifically to the original meaning of the Constitution. The judicial humility reflected in his opinions therefore is not a form of minimalism; nor does it reflect or require self-doubt or timidity. Indeed, Justice Thomas has stated that “too many show timidity today precisely when courage is demanded.” Clarence Thomas, Francis Boyer Lecture at the AEI Annual Dinner: Be Not Afraid (Feb. 13, 2001), http://www.aei.org/publication/be-not-afraid[http://perma.cc/N5VX-8W3K].

Justice Thomas’s humility contrasts with the kind of judicial “humility” that Chief Justice Roberts praised as a justification for stare decisis during his confirmation hearings. See Confirmation Hearing on the Nomination of John G. Roberts, Jr. To Be Chief Justice of the United States Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) (statement of John G. Roberts). Justice Thomas rejects constitutional stare decisis.  He has described the Court’s leading formulation of the doctrine as “a product of its authors’ own philosophical views . . . , and it should go without saying that it has no origins in or relationship to the Constitution and is, consequently, . . . illegitimate.” Stenberg v. Carhart, 530 U.S. 914, 982 (2000) (Thomas, J., dissenting) (referring to the stare decisis doctrine articulated in Casey v. Planned Parenthood, 505 U.S. 833 (1992)). For Justice Thomas, subordination of his “own philosophical views” to the law means returning to the original Constitution, not to the views of earlier Supreme Court peers. Thus, his judicial humility differs from judicial restraint or minimalism, and is compatible with the claim that he behaves as an “activist” judge regarding precedent. It is not compatible, however, with the claim that he is deliberately cruel.

The idea is this: It is by humility that Justice Thomas seeks to read the original intention of the Constitution.  Humility lead Thomas to be an originalist.

Ave Maria Law Review also has an interesting piece about judicial humility.    Be sure to read the conclusion.

Do a search on Amy Coney Barrett and stare decisis and you get some really interesting reading material.  For example, “Originalism and stare decisis” in Notre Dame Law Review.    See a page of selected works: HERE

There is going to be a huge fight over this appointment.   I suspect that she could be on the short list of candidates.

About Fr. John Zuhlsdorf

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  1. Kathleen10 says:

    Candidates for SCOTUS must be based on a proper appreciation for our Constitution and a proven record of adhering to it, not international law as some of them have done previously, which is a horror. President Trump is very level headed about appointments, he will surely choose based on all the best criteria. I will not rejoice over another woman being selected. Sex is a poor predictor of Constitutional fidelity and nothing else matters but that. Besides, we have three women on SCOTUS now and they are all total duds. I have full confidence in this president’s ability to find someone excellent, although we know bad surprises can come out of nowhere (Roberts). Justice Thomas has been superb, God bless him, he has paid such a price for being a black conservative.
    President Trump has been a gift. We thank God for him.

  2. Legisperitus says:

    Interestingly, putative frontrunners Brett Kavanaugh and Amul Thapar are both Catholics, as is Amy Coney Barrett.

  3. excalibur says:

    They should be naming schools after Clarence Thomas, and not after Barack Obama.

  4. stephen c says:

    Clarence Thomas and Samuel Alito are both much much better judges than Scalia was, but Scalia was, off the bench, a good Christian, an eloquent man, a good father, and a good example of many kinds of virtue, so there’s that.

    I don’t think Clarence Thomas has sacrificed much for being conservative. He is intelligent enough to know that the liberal criticisms of him are nothing but vanity. And I seriously doubt that anyone with his life experience is going to be all that upset that misguided doctrinaire liberals try to make fun of him once in a while. They only make themselves look foolish (for details, see the first 10 or 20 books in the Book of Proverbs).

  5. AndyMo says:

    I think there are two definitions of “judicial humility” being used here. One is the idea that judges should subordinate themselves to the law, that the intent of the law should be in the forefront of their minds rather than creating new law or policy. On this, I completely agree. Judges need to be humble, to “stay in their lane,” and interpret the law rather than create it.

    The other definition here is the idea that the judiciary is subordinate to the other two branches of government. In our system of checks and balances, this is foreign. The court should not be the super-branch that co-opts other authority, but neither are they second-class. They are equal to, no more or less than, the executive and legislative.

  6. LeeGilbert says:

    Justice Thomas and the Litany of Humility

    From an interview with Rush Limbaugh, the transcript of which is at http://freerepublic.com/focus/f-news/1905071/posts

    “When I first got to the court, Justice Powell was still there, and, of course, he had retired and was still in the court itself, and he had a conversation with me during one of our many chats, and he said that, “Once you think that you belong at the court, it’s time for you to leave.” I agree with that. I think that in these jobs, you have to remember that the job, the Constitution, the work we do is important, but we’re just human beings. That was the attitude that Justice White had and so many of those who went before me. I think humility is very important in doing these jobs. It’s not about us. I keep on the wall in my office — and my favorite prayer is — The Litany of Humility. You really don’t want to get caught up in what people say, negative or positive. You’re there, you took an oath, and, as I said to my clerks, “I took an oath to God, not an oath to be God.” We’re there to do our jobs as judges. I’m a judge. I have a limited role, and I stick within that role.”

    In another article that I saw recently, written by his wife, she said that he prays that litany every day.

  7. robtbrown says:

    stephen c says:

    Clarence Thomas and Samuel Alito are both much much better judges than Scalia was . . .

    Why do you say that?

  8. hwriggles4 says:

    I believe Don Willett is on that short list. Justice Willett is on the Texas State Supreme Court, and has a good record of standing up for Christian values. He’s also about 57, so like Gorsuch, he could be on the court (if chosen, accepted, and appointed) for a long time.

    I have been watching the votes over the last few years. On at least two cases, I have noticed that Kagan sided with the more conservative justices. I am thinking Kagan is more inclined to what is good for the country, and not “well I want…” Roberts voted down the unconstitutionality of Obamacare, saying it was a “tax problem “. I think Robert’s was vindicated last year with the new congress.

    A good lawyer once said that judges today are given briefs on cases to help them make decisions, and the sad thing today is many judges (regardless of politics, religion, personal beliefs, etc.) don’t even read these briefs. Law firms spend countless hours (quite a few lawyers work 60+ work weeks – I know several who didn’t marry until being close to forty) writing these briefs, and clients are charged for these billable hours.

  9. stephen c says:

    Rob’t Brown – For starters, Justice Scalia was on record as implying that the Constitution “says nothing” about abortion, therefore if a state law, enacted in a procedurally correct way, legalized (or, presumably, made compulsory in certain cases) abortion, he would, as a judge who tried his best not ‘to let his religious views color his interpretation of the law’, be unable to find the law unconstitutional (under the federal constitution).

    The law that was challenged in Roe v Wade prohibited certain abortions in Texas; presumably, if someone had standing to challenge one of the (non-Texas) state laws in 1973 that allowed abortion on demand, to include making abortion in certain cases compulsory (in a scenario where a mother was ruled incompetent and a doctor found the killing of the fetus to be in her best interests), then Scalia’s cranky and deficient view of his job as a justice would have led him to the wrong result.

    Thomas and Alito do not share Scalia’s deficient understanding of the relationship between the binding primary truths of natural law and the contingent procedural particularities of the written law of a given nation. The fact that a nation has chosen to “enshrine” its laws in a written Constitution does not limit the powers of the citizens (and legislators and judges) of that nation, with respect to the natural law, as much as Scalia believed. Thomas (certainly) and Alito (almost certainly) get this right, where Scalia got it wrong.

    Also, with all due respect to Scalia, I think it is fair to say that Alito and Thomas, while not better writers than Scalia, are simply better judges, at least in the details of all, or at least most, of the cases which I have read in which one or both of them disagreed with Scalia. (There are more such cases than most people would think, particularly in the Fourth Amendment and First Amendment contexts).

    (In Scalia’s defense, he once said something like this: if his religious views were that the death penalty, for example, is completely immoral, he would resign as a judge before upholding a law imposing it. Since he said that, I believe that he would resign before upholding a law that clearly makes abortion compulsory ( as long as he had remained compos mentis , which is not necessarily guaranteed on a Supreme Court which may in a decade or two have an average age in the 80s)).

  10. cengime says:

    I think that even more than in Thomas’ prolific dissents, his willingness to question bad precedent really comes through in his concurrences, where he agrees with the outcome of the case, but still speaks up to denounce the direction the Court has taken on the matter at hand in the last fifty or a hundred years.

    For example, in United States v. Lopez (1995), he agrees with the majority that the Commerce Clause does not grant Congress the authority to prohibit gun possession within 1,000 feet of a school, but writes separately to bring up the need to reconsider all of the Supreme Court’s Commerce Clause jurisprudence since 1937.

    In United States v. Hubbell (2000), Thomas joins the majority in holding that the respondent in this case has a Fifth Amendment right not to “be compelled…to be a witness against himself” by having to produce subpoenaed documents according to the act-of-production doctrine, which was adopted by the Corut in 1976 and provides that a criminal defendant ordered to produce documents or other physical evidence may only invoke the Fifth Amendment as a bar to production if the act of production would be a kind of testimony that he possesses the evidence. However, Thomas writes separately (joined by Scalia) to present evidence that the act-of-production doctrine itself is wrong and the word “witness” in the Fifth Amendment should be taken to mean not only someone who gives testimony but also someone who produces evidence.

    In McDonald v. Chicago (2010), he agrees with the majority that the Fourteenth Amendment incorporates the Second Amendment against the states (so that neither the federal government nor a state government may infringe the right to keep and bear arms), but he would reach this conclusion by overturning the landmark Slaughter-House Cases from 1873.

    One of the most distinctive features of Thomas’ separate opinions has come to be the numerous citations of his own separate opinions, as he applies this body of law he has developed while marching to his own drum for twenty-six years.

  11. SKAY says:

    I completely agree with your comment Kathleen10,

    excalibur said:
    “They should be naming schools after Clarence Thomas, and not after Barack Obama.”
    That is an excellent idea.

  12. tho says:

    If it were not for four Catholic’s on the senate judiciary committee we could have had the most qualified jurist in supreme court history, Robert Bork. The four Catholic’s were Joe Biden chairman, Ted Kennedy, Dick Durbin, and the guy from Vermont, Leary. Those hearing left an indelible mark on my heart. I think my cynical outlook on life, in our country, began at the end of those hearing. Judge Bork was an exemplary man and a fine example of what a lawyer should be.

  13. Legisperitus says:

    stephen c: What you call “Scalia’s cranky and deficient view of his job as a justice” is what I would call his deep understanding of federalism and the limited powers of the federal judiciary. The federal courts have never been courts of general jurisdiction, but only limited jurisdiction created by Article III of the Constitution.

    Erie R.R. Co. v. Tompkins held that there is no “general federal common law,” a kind of law which would encompass the power to apply natural law as a rule of decision. State courts of general jurisdiction, however, have no such limitation, and they can and should invoke principles of natural law when appropriate. The powers not expressly granted to the federal government are reserved to the states under the Tenth Amendment.

    If Justices like William O. Douglas, William Brennan, and Harry Blackmun had not fabricated and weaponized their own misshapen ideas of natural law, but simply applied the express language of the Constitution, we would not have seen monstrosities like Roe v. Wade. Scalia knew the limitations on his power, and the importance of them.

  14. TonyO says:

    My understanding of judicial humility (and Clarence Thomas’s use of it) is that it rests very much on a principled understanding of law, and of the Constitution. This is in direct contrast to the legal positivism philosophy of law peddled at nearly all law schools. Legal positivism teaches that “law” means basically whatever the lawmaker wants it to mean right now. And, since “the people” in America are the ultimate law-maker, the Constitution means whatever the people want it to mean right now. Of course, it just so happens that “the people” speak with 300 million voices, so it happens to be up to 9 judges on the Supreme Court to filter that “voice” so as to be made determinate: the Constitution means whatever 5 justices say it means. And when the 5 justices change, so can the Constitution.

    This is an unmitigated disaster as far as “rule of law” principles goes. The law has to have a determinate meaning in order to be followed (by the people) and applied (by the state, the police, and the judges). In having that determinate meaning, it has to mean whatever the meaning was of the lawgiver at the time the law was given – and then leave it to later lawgivers to CHANGE the law if they want a different law in place. Judicial humility, then, means respecting the law ACTUALLY made by the past lawmaker, and respecting that it ought to take a specific new act by the later lawmaker to change the law. The law should not change automatically due to new circumstances – that makes “circumstance” the lawmaker, not the legislature.

    Judicial restraint, I think, is the attitude of a judge as to whose authority it is to make or change law. If a legislature makes a really poor law, one that is very imprudent, but is not per se immoral, (a law that mandates abortions in certain situations would be per se immoral), it is not the judge’s place to change the law into a better one. It is not his job to correct all evils, and he must leave to the legislature their roles in correcting evils, and submit to their authority to make law.

    I disagreed with Scalia on the nature of the judicial role, in his thoughts about having to resign if a law mandated the death penalty and (as a hypothesis) we assume that the death penalty is intrinsically immoral. In that case, the judge would have the obligation NOT to sign off on the death penalty, but he would be morally and legally free to resist in more than one way: he could resign; or recuse himself; or simply defy the so-called “law” (which would not actually be a law because it would be – by hypothesis – directly contrary to Natural Law) and accept the consequences come what may (such as reprimand or dismissal from the bench. It would not be a mandate of the constitutional system that he resign, and he should consider himself free to resist bad law even if he were not to be successful in the effort.

    The hardest parts, though, are those laws that do not mandate intrinsically evil acts, but that permit them. In the case of a judge, he has to consider both the fact that he cannot condone intrinsically evil acts, but at the same time it is not his job as judge to correct all evils, even errors of the legislature. In some cases, it is actually morally prudent for a legislature to tolerate some evils – even some intrinsically evil acts – because suppression of them would lead to still worse evils. So, when a legislature changes the law to permit abortion, is it a judge’s role to overturn that legislative decision? Or, as another example, if a higher-level lawmaker would theoretically have the power to overturn the decisions of a lower-level lawmaker (such as a state legislature over the powers of county lawmakers), but the higher one makes an intrinsically evil act to overturn the lower-level rule. Should the state judge who decides whether the higher-level law is to be held as authoritative base his ruling on the reality that the higher-level one is intrinsically evil and therefore cannot have binding authority, or does he base his ruling on the superiority of the higher-level lawmaker in spite of the fact that he does not approve of how they used their power, and say “I know that IN FACT the higher “rule” is not binding in reality because it contravenes natural law, but it is not in MY power to declare it so for purposes of law”? These are not simple questions.

  15. robtbrown says:

    Stephen C says,

    Thomas and Alito do not share Scalia’s deficient understanding of the relationship between the binding primary truths of natural law and the contingent procedural particularities of the written law of a given nation. The fact that a nation has chosen to “enshrine” its laws in a written Constitution does not limit the powers of the citizens (and legislators and judges) of that nation, with respect to the natural law, as much as Scalia believed. Thomas (certainly) and Alito (almost certainly) get this right, where Scalia got it wrong.

    It’s not a matter of Scalia having a deficient understanding of natural law. He said that SCOTUS opinions are read primarily by professors and judges, and they have little use for natural law as a basis for juridical opinions. He was trying to convince others without recourse to natural law arguments, instead employing balance of powers arguments.

    Of course, that raises another question: Aren’t all human rights, including the right to property based on natural law? Wasn’t the abolition of slavery based on natural right?

    The importance of natural law is obvious in the Declaration of Independence, which of course lacks legal status. On the other hand, one liberal justice, perhaps Ruth Bader (AKA Norman Bates’ mother), insisted that laws of other nations can be used to influence jurdicial reasoning, even though they lack jurisdiction in the US. If that’s so, why not the DoI?

    I’m not sure how or if natural law re property can be woven into decisions regarding moral matters like abortions. And I’m equally unsure whether lawyers, depending on their own education and practice, are equipped for the task.

    If you want to read a joke of a decision, I recommend that of the NJ Supreme Court on the Dem petition to take Torricelli off the ballot. It would have failed a frosh logic class.

  16. Malta says:

    Barrett is a strong woman and devout Catholic; she could literally be on the bench for thirty plus years. Presidencies last for between four and eight years. (I didn’t vote in the last election cycle for POTUS, btw., maybe I should have). But Barrett has the grace and charisma that could be the deciding vote to reshape our Country.

  17. tamranthor says:

    How is it that no one has noted to the anti-Catholic bigots that the Catholic point of view is also an American point of view?

    At what point did we simply give up and accept the leftist idea that being Catholic was somehow un-American?

    My rosary has never been on anyone’s ovary.

  18. Fallibilissimo says:

    You know, all the candidates seem fine, but now since the left is behaving like this, I really hope Barret gets it. Oh yeah, two can play at this game. They only act like nasty, intolerant bigots.
    MSW wants to chop our heads off? Fine, me first! I’ll make sure to shave extra carefully so he can get a nice clean cut…I hate shaving cuts after all. But I don’t want them to get this one. I want to see Justice Barret on the SCOTUS!!!
    And how appropriate that the one who may end up deciding that killing children in the womb isn’t a right, would be a Catholic mother of 7. Oh, how poetic a “Justice” would be!
    (you get it? “Justice” as in…yeah I’ll…I’ll walk myself out)

  19. LeeGilbert says:

    FWIW, there is a really excellent, 55 minute lecture about SCOTUS by Amy Coney Barrett at https://www.youtube.com/watch?v=7yjTEdZ81lI&t=1794s. Talk about clarity of mind!

  20. Antonin says:

    If Justice Barrett is nominated and she faces the storm of bigotry veiled as separation clause, I expect our Bishops and Pope to speak up on the matter. A Jewish person is almost never asked about support for political Zionism and separation of synagogue and state but prominent Jews have no problem pilloring Catholics (worse when they are joined by other liberal Catholics)

  21. Antonin says:

    PS..I believe the nominee will be Barrett

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