The Perspective of a Junior Circuit Judge on Judicial Modesty

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. After I provide an overview of judicial modesty based on what the Chief Justice and Judge Posner have said about it, I will address two aspects of my work that provide opportunities to display judicial modesty. First, I will address an aspect of the adjudicative work of the courts of appeals: that is, our orders denying rehearing en banc and the routine practice of filing dissenting opinions to accompany those orders.

I will argue that these opinions are inconsistent with judicial modesty. Second, I will address a component of the administrative work of the federal judiciary: that is, our policy about employing either term or career law clerks. I will argue that the policy recently adopted by the Judicial Conference of the United States that limits federal judges to one career clerk is consistent with judicial modesty.