Constitutional Humility
![handle is hein.journals/ucinlr76 and id is 31 raw text is: CONSTITUTIONAL HUMILITY
Michael J. Gerhardt*
INTRODUCTION
In today's Lecture, I will not discuss constitutional law in the manner
in which most law professors do. The point of this Lecture is not to
suggest that I am smarter than Supreme Court Justices. I am not. Nor
will I say I have discovered some startling new, never before considered
ways to resolve the most difficult questions of constitutional law. I have
not. Nor will I have the temerity to say that I am smarter than the many
distinguished people who have preceded me in this distinguished forum.
By the time I am done, you may know that this is not true.
My topic is anything but bold. It is the antithesis of bold. It is the
importance of humility in judging. This is a topic, as you probably
know, that came into the national spotlight during the confirmation
hearings for Chief Justice John Roberts in September 2005. In
explaining his understanding of what judges do, Chief Justice Roberts
told the Senate Judiciary Committee that judges should be servants of
the law and should be guided by a certain humility.' In explaining
what he meant by this reference to humility, the Chief Justice said,
[I]t is a limited role. Nobody ever went to a ballgame to see the
umpire .... [M]y job [is] to call balls and strikes, and not to pitch or
bat.,2 He further explained that he had no grand or overarching
philosophy for deciding cases but rather believed judges should merely
decide the cases before them3 as narrowly as possible so as to promote
consensus on the Court,4 and not try to legislate from the bench or
* Samuel Ashe Distinguished Professor of Constitutional Law & Director of the UNC Center on
Law and Government, University of North Carolina at Chapel Hill Law School. B.A. Yale University,
M.Sc. London School of Economics, J.D. University of Chicago. This Essay is largely based on the
Robert S. Marx Lecture which I had the privilege of delivering on February 29, 2007. 1 am very grateful
to Dean Lou Bilionis for the opportunity to deliver the Marx Lecture, to the University of Cincinnati
Law Review for its support and assistance in preparing the lecture for publication, and to Alex May,
UNC Class of 2009, for his excellent research assistance.
1. Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the
United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. 55 (2005) [hereinafter
Confirmation Hearing] (statement of John G. Roberts, Jr., Nominee, Chief Justice of the United States).
2. Id. at 55-56.
3. Id. at 158.
4. Id. at371.](ViewImageLocal?handle=hein.journals/ucinlr76&div=10&collection=&method=preview&ext=.png&size=3)
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Constitutional Humility
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