Judging in the Good Society: A Comment on the Jurisprudence of Justice Scalia

Abstract

In his great book, Justice Accused, Robert Cover wrote of anti-slavery judges whose adherence to a formal conception of the judicial role prevented them from using their judicial authority to oppose slavery. Although morally opposed to the institution of slavery as antithetical to their vision of a good society, they nevertheless enforced fugitive slave laws and in other ways upheld the legal apparatus of slavery. Cover, who perhaps more than most appreciated "the complexity of moral choice," understood those judges to have confronted a "moral-formal dilemma." I quote from Cover's description of that dilemma: [T]he judge's problem in any case where some impact on the formal apparatus could be expected, was never a single-dimensioned moral question is slavery or enslavement, or rendition to slavery, morally justified or reprehensible? rather, the issue was whether the moral values served by antislavery (the substantive moral dimension) outweighed interests and values served by fidelity to the formal system principles or to the content of the principles themselves. In a sense the moral-formal decision was a moral-moral decision a decision between the substantive moral propositions relating to slavery and liberty and the moral ends served by the formal structure as a whole, by fidelity to it, or by some relevant particular element of it. Thus, the legal actor did not choose between liberty and slavery. He had to choose between liberty and ordered federalism; between liberty and consistent limits on the judicial function; between liberty and fidelity to public trust; between liberty and adherence to the public corporate undertakings of nationhood; or, as some of the judges would have it, between liberty and the viability of the social compact.