The Judicial Oath and the Judgment of History
Thank you for inviting me to deliver this lecture, which honors the Rice-Hasson family and their deep ties to this University. As champions of religious liberty and the Gospel of Life, their family has honored the model of the first Christian, to whom this University is dedicated—Our Lady, who told the angel Gabriel, “May it be done to me according to your word” (Luke 1:38). May this lecture series continue to honor her and glorify her Son.
Nearly twenty years ago, I delivered a lecture at Notre Dame, at the invitation of the Student Government Association, in which I explored how religious faith properly informs a Catholic judge. Today, I want to return to the subject of what properly motivates a judge to perform his duty, and in so doing, I want to refute a contemporary misconception about the judicial role.
Why return to this subject? The answer comes from the constant need to challenge a familiar and insidious modern refrain—indeed, the benchmark of our secular culture—the so-called judgment of history. Time and again, elites in the news media, politics, academia, and the legal culture say that what matters for anyone in public life—indeed, the only thing that matters in the end—is how history will judge us. Sometimes, even judges express this view, as I witnessed several years ago. This refrain is especially common now as legal commentators hyperventilate about the role of the Supreme Court and other federal courts in the politics of the moment. Critics frequently ask the rhetorical question how will history judge the judges.
We hear this refrain even from defenders of the judiciary. To take just one example, in June, a columnist for the New York Times, David French, sought to explain why federal judges appointed by the president regularly exercise independence by ruling against his administration. French is a lawyer who for years admirably represented clients in the cause of religious liberty. But what he wrote confounded me. He first explained his bona fides, that he “come[s] from the conservative legal movement.” He assured his readers that he has “friends throughout the conservative legal movement (including many Trump-appointed judges).” As a result, he wrote that he “thinks [he] know[s] the answer or, at least, part of it”—that federal judges have different “core motivations” from elected officials. He invited readers, “Think of it as the difference between seeking the judgment of history over the judgment of the electorate, and to the extent that you seek approval, you place a higher priority on the respect of your peers than the applause of the crowd.”
To be sure, judges should avoid, as French put it, seeking the applause of the crowd. He correctly explained, “Many parts of the Constitution are intentionally counter-majoritarian. They’re designed to protect both individual rights and our republican form of government from majoritarian mobs.” And to be fair, French knew that his column would be read by the many secular subscribers to the New York Times. But keep in mind too that there often is more than one crowd to please in any legal controversy.
Does ignoring the applause of the crowd mean that we should be measuring our life’s work according to the so-called judgment of history? Or is the judgment of history instead a shorthand way of referring to the applause of another crowd—an elite one, and a smaller one, but a crowd nonetheless? Should a judge think about the applause of any crowd, including even a crowd of historians? Should a judge think about the approval of peers, especially when even elite peers are fragmented in our culture? Which peers? Should a judge in New England or California seek the approval of his peers in Boston or San Francisco? Should a judge in Texas, Florida, or Alabama seek the approval of his peers in Waco or Tampa or Tuscaloosa?
Admittedly, some judges think that the judgment of history matters—a lot. For example, twenty years ago, a federal district judge in Massachusetts, William Young, wrote an opinion about the decline of the civil jury trial and predicted, “History will not look kindly on that generation of jurists who acquiesced in the eclipse of our greatest bulwark of personal liberty—the American jury.” Five years ago, another district judge, Josephine Staton, sitting by designation on the Ninth Circuit, dissented from the dismissal for lack of standing of an ambitious lawsuit about climate change. She wrote, “If plaintiffs’ fears, backed by the government’s own studies, prove true, history will not judge us kindly.” Justice Sotomayor used similar language when reading her dissent in Trump v. Hawaii from the bench—“History will not look kindly upon the court’s misguided decision today”—though that line did not appear in her written opinion. When Chief Judge Judith Kaye of the New York Court of Appeals dissented from a decision that the state constitution did not provide a right to same-sex marriage, she predicted “that future generations will look back at today’s decision as an unfortunate misstep.” And when Justice Marilyn Kelly of the Michigan Supreme Court dissented from a decision upholding a voter identification law, she wrote “that history will judge us harshly” for that ruling.
This kind of rhetoric in a judicial opinion once prompted me to respond to it in a concurring opinion. Five years ago, our court, in an en banc proceeding, ruled that Florida did not violate the Fourteenth and Twenty-fourth Amendments to the Constitution when it required convicted felons to pay all fines, court costs, and restitution before restoring their voting rights even after the felons had completed their terms of imprisonment. The main dissenting opinion ended by reminding readers that our predecessor circuit, the Old Fifth Circuit, “ha[d] been rightly praised for its landmark decisions on voting rights in the 1950s and 1960s,” but expressed doubt that the majority’s decision would “be viewed as kindly by history.”
That smug charge raised my hackles. As a former law clerk to one of the heroes of the Old Fifth Circuit, Judge John Minor Wisdom, I viewed the dissent as misrepresenting the example set by our predecessors. Judge Wisdom and other judges, like Elbert Tuttle, Richard Rives, and John Brown, courageously upheld the rights of black voters because the Constitution ratified by the American people required them to do so, not because they were concerned about the judgment of history.
My concurring opinion responded (quoting Judge Patrick Higginbotham) that the “‘heroism’ that the Constitution demands of judges—modeled so well by our predecessors—is that of ‘devotion to the rule of law and basic morality.’” As I saw it, “Our duty is not to reach the outcomes we think will please whoever comes to sit on the court of human history. The Constitution instead tasks us with ‘administering the rule of law in courts of limited jurisdiction,’ which means that we must respect the political decisions made by the people of Florida and their officials within the bounds of the Supreme Law, regardless of whether we agree with those decisions. And in the end, as our judicial oath acknowledges, we will answer for our work to the Judge who sits outside of human history.”
The irony about the modern obsession with what our culture calls the “judgment of history” is that history itself tells us that previous generations thought that the measure of a judge’s duty is not history but instead the oath of office that he swears before beginning that duty. Before taking office, a federal judge must swear to “administer justice without respect to persons, and do equal right to the poor and to the rich, … [to] faithfully and impartially discharge and perform all duties … under the Constitution and laws of the United States, and … [to] support and defend the Constitution of the United States. … So help me God.” Taking that oath empowers the appointed judge to begin his duty.
We hold formal ceremonies when public officials take oaths of office. Witnesses place a hand on the Holy Bible when swearing an oath. So do public officials, ranging from the mayor of a small town to the president of the United States. Jurors take an oath collectively administered by a court official at the start of any trial. Grand jurors do the same before starting their proceedings. Lawyers take an oath for admission to the bar. And judges take an oath administered by another judge before being invested in a courtroom with a robe that serves as a symbol of the office.
Despite the solemnity of these ceremonies, one might wonder whether we still take oaths seriously. When someone asks why judges perform their duty impartially and independently, should we not consider their oath as the simple answer? If judges reach decisions that we think are wrong, why do we not say that they have betrayed their oath? Why appeal to the so-called judgment of history? Consider what history tells us about an oath.
Ancient generations considered oaths to be essential tools of accountability. James Endell Tyler, an Anglican minister, wrote in 1834 that oaths have persisted “[t]hrough all the diversified stages of society, from the lowest barbarism to the highest cultivation of civilized life.” Even primitive oaths, said a legal scholar in 1903, rested on a “notion of a divine or supernatural power … taking cognizance of and in some degree regulating the affairs of mankind.” The Code of Hammurabi employed an oath for a woman to rebut a false accusation of adultery before she could return to her husband. Ancient oaths, says a standard reference on classical antiquity, became “required of signatories of treaties [and] … of governmental officials, judges and jurors, and, particularly by the Romans, of soldiers.” Plato’s Socrates explained at his trial that the judge’s duty “is … not to make a present of justice, but to give judgment; and he has sworn that he will judge according to the laws, and not according to his own good pleasure.” The Roman emperor Justinian recounted how judges in his day and “in former times could not accept the judicial office unless they had previously made an oath that they would on all occasions decide according to the truth, and in compliance with law.” The ancients, Rev. Tyler observed, also marked the taking of an oath with ceremony: Greeks and Romans took oaths “approaching the altar [of a particular god], laying the hand upon it, and swearing by the divinity to whose honour it was raised.”
Scripture teaches the same lesson about the importance of an oath. The book of Genesis (14:22–23) tells us that Abraham, “[w]ith raised hand … swore to the Lord, God Most High, Creator of heaven and earth,” and told the King of Sodom that he would “accept nothing belonging to” him. In Deuteronomy (6:13), God commanded the Israelites, “you shall fear the Lord your God and serve Him and shall take oaths in His name.” Even God took an oath when he allowed Ezekiel to prophesy to the people that he “swear[s] with uplifted hand that the nations around [them] will also suffer scorn” (Ez. 36:7).
The New Testament repeats this lesson about the gravity of oaths. The author of the epistle to the Hebrews wrote (6:16) that men “swear by someone greater than themselves and the oath confirms what is said and puts an end to all argument.” St. Paul too invoked God as his witness in his epistles to the Corinthians and Romans (2 Cor. 1:23, Rom. 1:9). In St. Matthew’s Gospel (5:33-37), Jesus taught: “Again you have heard that it was said to your ancestors, ‘Do not take a false oath, but make good to the Lord all that you vow.’ But I say to you, do not swear at all; not by heaven, for it is God’s throne; nor by the earth, for it is his footstool; nor by Jerusalem, for it is the city of the great King. Do not swear by your head, for you cannot make a single hair white or black. Let your ‘Yes’ mean ‘Yes,’ and your ‘No’ mean ‘No.’ Anything more is from the evil one.”
The early preeminent theologians understood Jesus to mean not that an oath was forbidden but that an oath should be reserved for extraordinary occasions. St. Augustine wrote that Jesus’s admonition meant that a Christian should “refrain as far as he can from indulging in [an oath], unless by necessity, when he sees men slow to believe what is useful for them to believe.” St. Thomas Aquinas agreed in the Summa Theologiae when he wrote, “Wherefore an oath is not to be reckoned among those things that are desirable for their own sake, but among those that are necessary for his life.” The Church settled this teaching at Trent by instructing in the catechism, “although oaths are in themselves good, their frequent use is by no means praiseworthy.”
That history informed our Anglo-American legal tradition of taking oaths on assuming office. Beginning in the tenth century, English monarchs swore a coronation oath. After the Glorious Revolution, that oath required the King to govern according “to the Statutes in Parliament Agreed on and the Laws and Customs of the same.” And that tradition of oath-taking crossed over to colonial America.
During the revolutionary era, state constitutions required oaths of office, often with religious requirements. South Carolina required anyone “appointed to any office or to any place of trust, before entering upon the execution of office,” to take an oath swearing to “support, maintain and defend the constitution of South Carolina … so help me God.” Vermont required its officers to swear “by the ever-living God, (or affirm in the presence of the Almighty God)” their allegiance and intent faithfully to execute their offices according to law. Delaware required its officers to swear or affirm that they “will bear true allegiance to the Delaware State” and “submit to its constitution and laws,” and that they “profess[ed] faith” in the Trinity and the “divine inspiration” of “the holy scripture.” Pennsylvania required both “allegiance” and for its officers to “swear (or affirm) that [they] will faithfully execute the office … according to law.”
The Constitutional Convention prompted a debate during the ratification struggle about the necessity of oaths. Noah Webster argued that “all test laws” and “oaths of allegiance” should be purged from American law. He suggested, like James Wilson, that oaths “were necessary to rivet the chains of feudal vassals.” For a government based on popular sovereignty, they saw no need for an oath. But Webster and Wilson were “outlier[s] among the founders in this regard.” Joseph Story later stated the majority view when he described the necessity of oaths as “a proposition too clear to render any reasoning necessary in support of it.” He explained, “Oaths have a solemn obligation upon the minds of all reflecting men, and especially upon those who feel a deep sense of accountability to a Supreme Being.”
The Constitution maintained the tradition of official oaths. Article II prescribed a specific text for the presidential oath that requires him to “preserve, protect, and defend the Constitution.” Article I, section 3, required Senators, when sitting for trials of impeachment, to do so “on oath or affirmation.” And Article VI required all federal and state legislators, executive officers, and judges to “be bound by oath or affirmation to support this Constitution,” but it banned any “religious test.”
During the ratification process, some Americans objected to the ban on religious tests, as some Protestants feared the election or appointment of Catholics to federal office. James Iredell, a delegate to the North Carolina convention, provided my favorite rejoinder to these objections when he rose to defend the ban on religious tests. His words were especially memorable for Catholics. Iredell said,
I met by accident with a pamphlet this morning, in which the author states as a very serious danger, that the Pope of Rome might be elected President. I confess this never struck me before, and if the author had read all the qualifications of a President, perhaps his fears might have been quieted. No man but a native, and who has resided fourteen years in America, can be chosen President. I know not all the qualifications for a Pope, but I believe he must be taken from the college of Cardinals, and probably there are many previous steps necessary before he arrives at this dignity. A native of America must have very singular good fortune, who after residing fourteen years in his own country, should go to Europe, enter into Romish orders, obtain the promotion of Cardinal, afterwards that of Pope, and at length be so much in the confidence of his own country, as to be elected President. It would be still more extraordinary if he should give up his Popedom for our Presidency.
We often marvel at the foresight and wisdom of the Founders. Add to the list of their prescient insights that in 1787 James Iredell foresaw the election of Pope Leo XIV. And we can be grateful that, as Iredell also foresaw, Pope Leo prefers serving as the Vicar of Christ to running for a four-year term as president. But we can all agree, Pope Leo would undoubtedly make a fine president!
“The Framers’ general understanding was that proscribing religious tests did not necessarily remove the religious significance of the general oath,” says one recent reference on the subject. James Madison, for example, explained in a letter to Edmond Pendleton in 1787 that an oath should make a religious test unnecessary. Madison wrote,
Is not a religious test as far as it is necessary, or would operate, involved in the oath itself? If the person swearing believes in the Supreme Being who is invoked, and in the penal consequences of offending him, either in this or a future world or both, he will be under the same restraint from perjury as if he had previously subscribed a test requiring this belief. If the person in question be an unbeliever in these points and would notwithstanding take the oath, a previous test could have no effect. He would subscribe it as he would take the oath, without any principle that could be affected by either.
Madison’s argument was that a religious believer would take an oath seriously without need of a religious test, and that a religious test could be declared by an unprincipled atheist without fear of punishment after death. Either way, a religious test was unnecessary. But the oath itself still mattered in early America.
Throughout the nineteenth century, American leaders described their oath of office as the standard for their public duty. Chief Justice John Marshall’s opinion in Marbury v. Madison referred to the oath as authority for judicial review when he described the judge’s obligation to adhere to the Constitution as a “rule for his government” and suggested that a contrary reading would make “tak[ing] his oath … a crime.” President Andrew Jackson defended his veto of the legislation extending the life of the Second Bank of the United States by appealing to his oath, when he wrote, “Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.” And President Abraham Lincoln defended his decision to issue the Emancipation Proclamation by arguing that his “oath to preserve the constitution … imposed upon [him] the duty of preserving, by every indispensable means, that government—that nation—of which that constitution was the organic law.” After the Civil War, consistent with Lincoln’s view, section 3 of the Fourteenth Amendment barred insurrectionists who had “previously taken an oath” of office from holding several federal and state offices, unless Congress removed that disability “by a vote of two-thirds of each House.”
Today, judges still take the same oath that Chief Justice Marshall swore. Judges swear before God to uphold the Constitution and laws of the United States wherever it leads. We do not swear to follow a prediction or speculation about what future generations will favor.
When modern society substitutes the so-called judgment of history for the historical standard of the oath of office, it raises almost unanswerable questions. How will history “judge” any public official? And how often will any public official’s work matter to any legal historian?
If we consider the current universe of federal judges, keep in mind that it comprises more than a thousand judges on the inferior courts. It includes 677 positions for active district judges for the 94 districts in the United States and its territories. Approximately 400 senior district judges also perform duties in a semi-retired status for those courts. There are 179 positions for active federal circuit judges on the 13 circuit courts of appeal and approximately 100 senior circuit judges who perform duties for those courts.
Not many of those judges will ever be studied by a legal historian. Visit any federal courthouse in the United States and ask a clerk, another official, or a lawyer how much they can tell you about any deceased judge whose portrait adorns a wall in the courthouse, especially when that judge has been deceased for more than twenty years. Then ask how history judged his work. Be prepared for a blank stare.
Consider too the volume of the caseload in the federal courts. Over the course of a judicial career, a federal judge will participate in tens of thousands of decisions in thousands of cases. The vast majority of those decisions will be routine, perhaps even mundane. Will historians care about a claimant’s application for Social Security benefits, a consumer’s petition for bankruptcy relief, a drug trafficker’s criminal sentence, or an employee’s complaint for overtime pay?
Contemporary elites might argue that in “important” cases history will remember a judge’s work, but that argument has troubling implications. An applicant for Social Security benefits, petitioner for bankruptcy relief, criminal defendant, or underpaid employee might argue that his case is the most important issue in his life. Surely we should not employ a different standard for the judge’s work in their cases, even if history will soon forget them. The same standard—the oath to do equal right to the poor and to the rich based on the rule of law—must govern all cases.
When someone argues that the so-called judgment of history matters in some case, he betrays his desired result in a high-profile controversy regardless of what the judge’s oath to uphold the law requires. But asking how future generations will view us is a fool’s errand. The person who asks that question is only projecting his hope about what future generations will think. Yet no one knows whether future generations will be wise or wicked. Nor do we know whether they will be any less divided in their views than previous generations have been.
The most abominable opinions in the history of the Supreme Court were written by jurists who probably thought they stood on the right side of history. Roger Taney probably thought so when he penned Dred Scott. Yet his notorious opinion helped lead to the Civil War. Oliver Wendell Holmes undoubtedly thought he was on the right side of history when he wrote, “Three generations of imbeciles are enough” in Buck v. Bell. But Americans thankfully have since abandoned state-enforced eugenics. Harry Blackmun probably thought history would look kindly on his opinion in Roe v. Wade. A half-century later, the Supreme Court overruled it as an “egregious” mistake. And in each period, the jurist’s peers celebrated those opinions.
In 2014, Robert P. George, the great professor of jurisprudence at Princeton University, explained the modern obsession with the so-called judgement of history. Speaking at the National Catholic Prayer Breakfast, he said, “They warn us that we are on the ‘wrong side of history.’ They insist that we will be judged by future generations the way we today judge those who championed racial injustice in the Jim Crow South.” Professor George then explained, “But history does not have sides. It is an impersonal and contingent sequence of events, events that are determined in decisive ways by human deliberation, judgment, choice, and action.… Nor is history, or future generations, a judge invested with god-like powers to decide, much less dictate, who was right and who was wrong.” He explained that elites appeal to the judgment of history because they lack faith: “The idea of a ‘judgment of history’ is secularism’s vain, meaningless, hopeless, and pathetic attempt to devise a substitute for what the great Abrahamic traditions of faith know is the final judgment of Almighty God. History is not God. God is God. History is not our judge. God is our judge.” He contrasted the pathetic substitute of secularism with the moral truth: “One day we will give an account of all we have done and failed to do. Let no one suppose that we will make this accounting to some impersonal sequence of events possessing no more power to judge than a golden calf or a carved and painted totem pole. It is before God—the God of truth, the Lord of history—that we will stand. And as we tremble in His presence, it will be no use for any of us to claim that we did everything in our power to put ourselves on ‘the right side of history.’”
For a judge who has sworn an oath, the trembling might be even more visible. As the Catechism of the Catholic Church explains, “[t]aking an oath or swearing is to take God as witness to what one affirms. It is to invoke the divine truthfulness as one’s own truthfulness. An oath engages the Lord’s name.” And so, a false oath is a violation of the commandment not to take the Lord’s name in vain. Recall that the prayer, “So help me God,” is a shorthand way of asking for his assistance on Judgment Day so long as the declarant speaks the truth.
St. Thomas More, the patron saint of lawyers and judges, provides the right role model for public duty. Remember that St. Thomas More was executed because he refused to take a false oath. He refused to swear to the supremacy of the King over the Church, and as he explained a moment before his execution, he “die[d] the King’s good servant and God’s first.” St. Thomas More understood that an oath has eternal consequences. His elite contemporaries, in contrast, thought that they stood on the right side of the King and of English history. As Hilaire Belloc once put it, Thomas More’s peers thought he was “a crank.” But St. Thomas More understood that Christians are called to be what St. Paul described (1 Cor. 4:10) as “fools for Christ.” Jesus said (Luke 14:26), “If anyone comes to me without hating his father and mother, wife and children, brothers and sisters, and even his own life, he cannot be my disciple.” So my oath, with God as witness, to uphold the rule of law must matter more than the judgment of any peer or historian.
Thank you, and may God bless you.
The author thanks his law clerks, Georgios Sarris and Noah Farley, for their assistance in researching the ancient history of oaths. This essay is adapted from the annual Rice-Hasson Lecture sponsored by Notre Dame’s Program on Church, State, & Society, given at Notre Dame Law School on November 14, 2025.
Image licensed via Adobe Stock.