Read Part I here.

Judge Just

Judge Just succeeds Judge Pragmatic and brings what he calls a ‘metaphysical’ approach. He holds the work of judging to be ultimately a moral endeavor, a work of conforming to “our moral heritage” (Delaney 121). He desires to see precedent where the judge “formulates and analyzes the controversy by explicitly acknowledging a claim of justice as the true ground of the decision” (67, 123). His stance on construction is more permissive than Judge Vigorous and Judge Freedom. He states that, “Judicial activism… may be justified, but it must be morally principled rather then an incoherent porridge” (sic) (122). Admittedly, he posits that “… judges are oath bound to apply these laws…, even if they personally detest them,” apparently repudiating this laxity in favor of stricter construction, but this apparent emendation is none at all, for he posits that decisions must be made on moral, not emotional grounds, and thus it is no restriction on construction to require the enforcement of moral (because part of the “moral heritage”) but unpleasant laws (121, 122). If they were immoral, after all, his ‘morally principled judicial activism’ could be called upon.

Judge Just, despite his apparent dissimilarity, falters at exactly the same point as Judge Pragmatic, for at a basic level their approaches are identical. Both consider judicial activities to be ruled by morality above legality, and both present immoral moral standards. Nevertheless, Judge Just (and by implication his colleague Pragmatic) is right in considering judicial activity fundamentally moral and necessarily ruled by morality; he errs by applying the wrong moral standard.

Vigorous, Freedom, and Pragmatic all considered the question from an ostensibly analytical angle, presenting front-and-center not the criteria but the method of choice. All of them, though Pragmatic with particular blatancy, founded this on a moral code, a should and should not, but only Pragmatic went so far as to name that code (utilitarianism) (119). Just approaches it head-on, asserting that judges ought to apply justice even above law.

Judges are moral actors; there is no doubt about this. As the prophet Isaiah states, “And I will restore your judges as at the first…. Afterward you shall be called the city of righteousness…” (1:26). The question here is of priority. Should a judge prioritize the law or the moral code he holds to? The question phrased thus is biased, admittedly, as if the judge ought to prioritize the law, that prioritization is in submission to his moral code. Let it be framed as follows, then: ‘Should a judge give the law or his personal moral code outside of the law priority in judging?’

No law can answer this statement with a command. Appeal must therefore be made to three arguments. First, if morality and law clash, morality is always more moral; the answer to any moral question, any should or ought, is therefore always reliant first on the moral code of the adjudicator. Second, the testimony of Scripture places laws in a hierarchy. Human law, Acts 5:29 implies, stands inferior to Divine law. Even if obedience to law were prioritized, therefore, obedience to law requires obedience to the correct moral code as the strongest binding authority available to the judge.

Third, while the legal structure of the American Constitutional system is technically posterior to this debate in logic, its persuasive weight argues for prioritizing morality over legality. Marshall states in Marbury v Madison, “If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.” The principle here is that a higher and more sure law overrules any law instituted under its auspices. The relationship of human law to moral (Divine) law is just such, as Junius lays out: “With respect to natural, divine, and human law, I assert that their authority varies. Regarding the former two, I say that the authority… is posited… without any controversy…. However, concerning the human law…, it is no wonder that opinions vary” (65-66). Morality, being the higher law, has the higher priority.

Just’s position reaches its error here. He assumes that the moral course of action overrides all concerns, as seen in Vigorous particularly, about the judge’s duty. In truth, the judge’s moral duty, as established in considering the three preceding judges, is to with all due caution use the strict-construction, spirit-of-the-law analysis to render the verdict. A verdict may be legal and moral, in which case no difficulty arises, but it may also be legal and immoral. In this case, the judge must hold his moral duty above his legal duty. However, this truth does not justify judicial activism; the judge can fulfil his moral duty without actually transgressing his legal duty.

The injustice of the legal verdict can come in two varieties. First, it may be injustice positive, the infliction of a punishment upon the innocent; second, it may be injustice negative, the withholding of punishment from the guilty (Is. 5:23). In the first case, the Anglo-American tradition provides the judge with a precedent, albeit a lateral one, for his proper course of action: jury nullification. In a 1763 legal case, Patrick Henry obtained a jury verdict of one penny damages against his client (Maharrey). This right of jury nullification, despite its disrepute among judges, provides the persuasive precedent for the judge. If the punishment the law requires is unjust to inflict, he can refuse to engage in it and thereby refuse to partake in an unjust act, albeit on some occasions procedure grants no choice. In cases without choice, of course, no moral responsibility attaches to the unchosen action.

If the injustice inflicted is negative, the release of the guilty, the judge has a much easier response. While undoubtedly the injustice is immoral, the judge does not bear the responsibility to amend this wrong. His job is not to punish the guilty. His job is to ensure that the government, when it punishes, punishes only the guilty. Blackstone stated that, “[T]he law holds that it is better that ten guilty persons escape than that one innocent suffer,” a stance upheld by the Supreme Court in Coffin v. United States (White). The judge’s role is to uphold this paradigm, holding the government to account, similarly to a defense lawyer (though not allied to him) (Why Do Lawyers).

Thus, the judge does not need to become a legislator in order to fulfil his moral duty. Judge Just’s error here arises from his false moral code, not from an irrelevance of morality as the preceding three seem to assert (Delaney 123-4). Just’s moral code rests on ‘our moral heritage’, but this is a subjective, immoral standard (Col 2:8). Benjamin Franklin recognized as much when he said of the Constitution’s form, “A republic, if you can keep it,” and Madison similarly stated, “If men were angels, no government would be necessary…. you must first enable the government to control the governed; and in the next place oblige it to control itself” (Federalist 51). They both recognizes that a ‘moral heritage’ is made by men of imperfect character and therefore can be trusted to diverge from the true morality at any excuse (Gen. 6:5). Judge Just’s morality, to be correct, must be made to correspond with God’s morality, not man’s changeable whims.

Judge Existential

Judge Existential, of the five judges here, presents the most difficult case. He holds that all cases are individual existences, existent in themselves without respect to judicial theory. The judge must participate in the existence of the case; his decision must be an appreciation of the stakes (Delaney 125). This, to a much greater extent than even the vagaries of Pragmatic, is top-notch, prime-grade, rarefied uselessness. Judge Existential provides the least basis for good judgment because he deliberately eschews all consideration of how to judge or what ‘good’ judgement means; thankfully, one worthwhile bit of advice can be salvaged.

That one worthwhile bit is the admonition to recognize the human scale of a case. Judges, in the American system, are lifted above the rest of the court, elevated and exalted, wielding exceptional powers. This estate can tempt them to forget the humanity of those they deal with- at least some. Remembering that humanity, however, both provides a better evidentiary basis in matters of fact, allowing the (moderated) use of empathy, and motivates the judge, contra the worries of judges Pragmatic and Crit, to give careful regard to what is good for the participants, not himself. This second benefit, though, can backfire, as it relies on the proper alignment of moral instincts, a trait rare among men (Gen. 6:5, 8:21; James 2:1-12).

As for the rest of his pronouncements, despite his grand rhetoric on “Mount Olympus” and being “charged in a democratic society to be faithful to the democratic will,” Existential provides no standard at all for judicial activity (Delaney 123). To say that “decision-making is an existential reality” means only that ‘decision making exists and is a part of the human existence’ (125). He does not discuss how a judge is to decide what is to change. This can only be understood as leaving it to whim and prejudice, effectively if not ideally, by neglect instead of action. To so rely on prejudice, however, is contrary to a judge’s proper course, as seen in considering previous judges.

If “Existence precedes essence,” as the judge’s epigram states, if general standards are inapplicable, as per Justice Holmes, then in fact there is no distinction between good and bad judges (124). As has already been stated, though, this conclusion is false in regard to morality (Luke 18:2,6). More, it is false in regard to the law. The Constitution itself grounds a judge’s tenure on “good behaviour,” a standard upheld in the impeachment of Justice Samuel Chase in 1805 (Article 3, Section 1; “Impeachment Trial”). Judge Existential does recognize an element of the judicial reality, the human experience, but he provides no insight as to proper engagement in the judicial act.

Judge Crit

Judge Crit gets the most distinct treatment of the six in Delaney’s narrative, bursting in after a suspiciously convenient mis-scheduling. He proclaims that all judicial decision are fundamentally compromised by power-motives, by an in-built or conscious protection of the elite. In sum, he declares, “Law in every society is primarily a weapon of the powerful…” (Delaney 126). Here Crit has recognized a fact of judicial life which does not (as Crit seems to think it does) remove the standard or justify altering it (126).

The legal system’s use of law as a means of oppression and injustice is a tale as old as government. Most recently, law has been used to protect, for rather obscure reasons, information which likely compromises a vast swathe of powerful people in business, government, and foreign intelligence (Walsh). Whether for reasons ideological or political, judges use their power to distort justice, wielding law as their cudgel (Barnes, “Robert Barnes”; Schlossberg 205-9). Madison testified to the general unreliability of man and wrote concerning partiality that, “Three motives only can restrain in such cases. 1. A prudent regard to private or partial good…. 2. Respect for character…. 3. Religion.” In all three cases, he found the motive insufficient, saying of the last, “The inefficacy of this restraint on individuals is well known” (Letter to Thomas, 151-2). Scripture concurs, condemning Israel’s rulers thus: “Your princes are rebels and companions of thieves. Everyone loves a bribe and runs after gifts” (Is. 1:23).

This course of partiality is immoral, as James 2:1-12 declares. Madison considered it an evil and worried about its evils in the already-quoted letter to Jefferson (Letter to Thomas, 150-153). Besides this, it is the plain intention of the Constitution, in beginning, “We the People,” that one party should not be unjustly advantaged by its operation against another (Preamble). This same reasoning, moreover, condemns any attempt to re-balance the discrimination by reciprocal injustice; neither James nor the Constitution (including particularly the Bill of Rights) will justify such partiality.

Further, while Crit’s contention should caution the judge, it ought not to modify his actual standard, let alone remove it. Injustice exists only as a shadow and inversion of justice (Rom. 7:7-10). Outrage over this injustice, therefore, strengthens rather than diminishes the position of the standard. Therefore Madison did not take the wickedness of mankind as a reason to give up on building a system resistant to that vice. He rather took that wickedness into account in developing his governmental standard, just as judges must do in developing their judicial standard, just as Christians must do in discerning the standard of their sanctification (1 John 1:10).

The six judges have spoken; what is the verdict? Vigorous gave a starting point, one in need of nuance and factual development. Freedom began that nuancing process but ran aground; Pragmatic added some practical realities but nosed into an even deadlier shoal. Judge Just recognized the essentially moral nature of their activity—and integrated the wrong standard, similarly to Pragmatic. Existential shirked the task of a standard altogether, but he did nuance the other’s stances helpfully. Crit, finally, noted more distinctly the turpitude first alluded to by Pragmatic. The sum of this is as follows: on explicitly moral grounds, judges should engage in strict-construction analysis of the spirit of the law to the extent of its actuality, eschewing all legislative innovation, in consciousness of their own flaws and biases, with maximal recognition of the facts of each case.

God bless.

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