Justifying Judicial Modesty

Abstract

In Rationing the Constitution, Andrew Coan offers a largely convincing theory of judicial behavior centered on the idea of judicial capacity. In this article, I first briefly discuss some of the main elements of Coan’s argument in Part I, and then grapple with the status of judicial capacity concerns as a type or modality of judicial argument in Part II. In line with some of Coan’s comments throughout his book, my starting assumption is that judicial capacity concerns have not figured prominently in judicial defenses of judicial modesty. My first substantive task, however, is to provide some tentative support for this by cataloging some of the arguments that Supreme Court justices have offered in this regard in several of the Court’s key voting rights opinions. This is the focus of Part III.

However, if it is the case that judicial capacity concerns figure less prominently in judicial defenses of judicial modesty relative to some other themes, this leads to a related question: why are judicial capacity concerns not more commonly invoked in this context? In Part IV, I set forth some tentative answers. In short, I believe that the more conventional judicial defenses of judicial modesty tend to be more appealing to judges because they either invoke common underlying assumptions — among judges and within the broader polity — about the nature of the judicial role, or because they reference significant threats to judicial institutional prestige as informed by prevailing historical narratives. Given this, judicial capacity concerns are unlikely to figure prominently in judicial defenses of judicial modesty.

Keywords: judicial modesty, judicial capacity, judicial role, legal standards, legitimacy