Amy Coney Barrett explains that letting one's own moral convictions interfere with interpreting laws as written and enacted is not a problem confined to traditionally religious people:
“All people, of course–well, we hope, most people–have deeply held moral convictions, whether or not they come from faith. People who have no faith, people who are not religious, have deeply held moral convictions,” Barrett noted. “And it’s just as important for those people to be sure– I just spent time talking about the job of a judge being to set aside moral convictions, personal moral convictions, and personal preferences, and follow the law. That’s a challenge for those of faith and for those who have no faith.”
“So I think the public should be absolutely concerned about whether a nominee for judicial office will be willing and able to set aside personal preferences, be they moral, be they political, whatever convictions they are,” Barrett explained. “The public should be concerned about whether a nominee can set those aside in favor of following the law.”
“But that’s not a challenge just for religious people. I mean, that’s a challenge for everyone. And so I think it’s a dangerous road to go down to say that only religious people would not be able to separate out moral convictions from their duty,” she said.
23 comments:
That's a challenging conception. "Resolved: we seek to hire someone who will abandon their moral views, their deepest sense of right and wrong, for a process that we shall call 'judgment' aimed toward 'justice.'"
I'll very loosely paraphrase something I read in a discussion of RBG.
The basic division is between judges who decide the result they want then try to find that result in the law and those who find the results the law allows then pick the one they think best.
Nobody seriously believes what ACB has to say but for some reason we have to keep up this charade that we haven't had multiple generations of lawless judging.
Sally Field in TV's "The Court" would
be worth binge-watching about now. Less than a dozen hours of video. Even if the writing sucks, Fields is worth watching.
Judges are free to resign if they can't stomach ruling on the basis of a bad law, and they're free to vote for different laws, but they're not free to make up whatever law they think best expresses the ideal moral outcome--whether religious or secular. A judge who acts within those limits is not amoral.
It's not just judges who face this dilemma. We all have to take responsibility for our own moral choices, and those may put us in peril of all kinds, but God doesn't give us a blank check to do wrong things because we think they'll lead to a more moral outcome, or exercise whatever power we have without any limits imposed by consent or trust, just because we're sure our choice is better.
That's a challenging conception. "Resolved: we seek to hire someone who will abandon their moral views, their deepest sense of right and wrong, for a process that we shall call 'judgment' aimed toward 'justice.'"
I think it's more a matter of "am I willing and able to set aside my personal preferences to administer the law evenly". And she's exactly right, but I fear that far too many judges confuse their personal preferences (be they moral, religious, political, or mere biases) with "justice" and try to manipulate the law to achieve that. And I know I would much rather have a judge honestly admit "this law is immoral, it is wicked, it is unjust, but it is Constitutional... if you don't like it, vote in others who will repeal it" than to have them whip up some vaporous, penumbral legal theory to deny it. And likewise, I would rather they kill a law they personally favor if it is unconstitutional rather than give it a wink and a nod and let it slide. To me, that would be the most desirable trait in a Supreme Court Justice.
My favorite thing that judges do is throw out laws. The constitutional order is a good reason to do that; but so too is if a law is truly immoral.
For me it's like a bank president. Is he justified in raiding a client's account because he has the power, and knows that someone needs a heart transplant today that he can't afford? Is that the moral thing to do?
A judge is given large powers, but they aren't given for whatever purpose the judge thinks is best. She can throw out a law, but only if it violates the Constitution, not just because she wishes the legislature hadn't passed it. Justice Scalia used to have a stamp imprinted with "dumb but constitutional."
The bank president analogy is apt
There is in law and the powers of judges the idea of acts, and laws themselves, that are 'unconscionable'. That 'Shock the conscience"; offend my basic notions of right and wrong; cannot be faced.
Chelsea Clinton spoke last week of President Trump's comments about the Wuhan flu being 'unconscionable'. I'm not sure she uses that word with the meaning a judge would use it.
But it does seem to be the kind of thing that comes up in a lot of contemporary cases. When a police man obstructs an arrested man's breathing using an approved technique -- for an unusually long time. When a legal abortion using approved techniques surprisingly delivers a living baby -- which is then expected and allowed to die on its own. When a care giver at a hospice or nursing home requests, "helps" fill out, and returns dozens of registrations and ballots in the name of every person in her care -- all for the same party and candidates.
Acts of this sort are arguably legal and in the scope of normal duties. But also arguably, they are a shocking abuse -- or neglect -- of the common duties of humanity most of us feel toward each other.
The letter of the law, and the spirit.
I dunno, Grim, it sounds like democracy, to me.
We expect police officers to enforce the law, not their personal moral beliefs, right? Or we expect Congress to pass laws that conform to the Constitution, not what the moral convictions of the majority would legislate.
That's all I see ACB saying about judges.
For me it's like a bank president. Is he justified in raiding a client's account because he has the power, and knows that someone needs a heart transplant today that he can't afford? Is that the moral thing to do?
This x1000. Yes it would be moral. It would be understandable. And I would run that man out of town on a rail for doing it. And so to it is for me with a Supreme Court Justice who would contort the law past reason in order to achieve their preference ("it's a tax").
I would point you to the following scene from "A Man For All Seasons" to see my firmest belief in this:
https://www.youtube.com/watch?v=WMqReTJkjjg
In an area where the law leaves a gray area, of course a judge brings his own moral and philosophical convictions. If the law doesn't leave a gray area, however, a judge that rewrites the law to suit his moral judgement has confused his job with that of a legislator, a position he wasn't elected to and shouldn't arrogate to himself. He should resign if he can't stomach enforcing the law as written, with whatever wiggle room the written law and precedent may contain.
The conflict reminds me of the spectacle of FBI directors and senior staff who do whatever is within their considerable power, not what's legally authorized, to achieve the "right" outcome in a criminal case. It's dangerous to give powers to people if we can't believe they'll exercise within the limits we prescribe for them.
"It's dangerous to give powers to people if we can't believe they'll exercise within the limits we prescribe for them." It is indeed dangerous, and we have people abusing their authority in such ways throughout the society: corporate executives who use company resources to further their personal political opinions, teachers who use their jobs to propagandize students...the list is very long.
"...so too is if a law is truly immoral."
I don't want the government or the courts deciding what is moral or not- having them as moral arbiters strikes me as a profoundly bad idea.
I want the people to be moral, and vote for a legislature and executive who will pass laws that are not conflicting with those morals, and if they don't to be voted out.
I don't want that power in a single person or small panel of people with no accountability in any practical sense.
I don't want the government or the courts deciding what is moral or not
Indeed. We already have enough government-mandated morality: positive: thou shalt not kill, thou shalt not steal; and negative: no entry into conscience--free speech, no entry into religion.
That's about it, and those at least start out consistent with our founding Judeo-Christian morality.
Eric Hines
"we have people abusing their authority in such ways throughout the society: corporate executives who use company resources to further their personal political opinions"--but if we can catch an executive using company funds for personal gain, the shareholders can sue him to get their money back. What's under discussion here is silently approving a judge's silent action to substitute his personal moral judgment for a public law, even though the law was duly enacted and not unconstitutional.
We're supposed to amend the Constitution if we don't think it gives us enough tools to invalidate bad laws, not just read anything into it we wish was there or wish we could elect a legislature to change.
I wouldn't want a judge imposing laws based on their sense of morality and nothing else, but I can certainly see striking down laws. For example, recently there was a case in which a father was forced by his ex-wife not only to accept the chemical castration of his only son (a minor), but to pay for it.
Now, a law like that might well exist; and it might be constitutional. But it is a moral horror, and anyone with the power to end it in any way ought to do so.
and it might be constitutional. But it is a moral horror, and anyone with the power to end it in any way ought to do so.
"Ending it" is a purely political decision and far beyond the scope of an American Art III judge's authority: she has no such authority or power. A judge doing that anyway violates her oath of office, and such a judge can never be trusted with anything.
Eric Hines
A law is ended, practically, if it is unenforceable. Indeed, when SCOTUS strikes down laws as unconstitutional, they are often never removed from the books; the courts just won't enforce them, so DAs revise what they prosecute.
Juries should nullify laws that are immoral by refusing to convict on them. They have that right because the citizenry are the sovereigns. Judges acting qua judge and not juror is a harder case, but not so much harder that a sitting judge should feel required to compel a father to castrate his only son.
Jury nullification is, as you say, entirely within the scope of jury authority. A judge cannot--legally and within her oath of office--strike down a Constitutional law just because she doesn't like it. But she can achieve something akin to that, legally and within her authority, by instructing the just-convicted/found liable defendant to hold out his wrist and tapping it lightly with her gavel and then shaking her finger very firmly at him.
Stepping outside sentencing guidelines--which are guidelines for all that too many too-timid judges, or judges too lazy to explain better reasoning, take as gospel--would be an argument well worth having over legal but believed-immoral laws. Forcing that argument might well force the political arms to address their political positions on that bit of morality.
Eric Hines
Which, by the way, is an excellent argument against mandatory minimum sentences.
Along with doing away with mandatory maximum sentences.
And for moving the sentencing phase wholly into the hands of the jury and out of the hands of a judge.
Eric Hines
Grim, I could see perhaps an *elected* judge having some justification in choosing to do that, but not an *appointed* one. The appointed Judge likely has no fear of personal repercussions. There is a significant difference. But the oath is still a tough thing to overlook, or should be.
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