Every day is a good day for a judge to lay down his professional life for justice.

AuthorWeinstein, Jack B.

INTRODUCTION

For the moral judge each day is a good day to live as well as--in the words of the Plains Indian warriors--"a good day to die." (1) That is to say, the judge embraces his professional life most fully when he is prepared to fight--and be criticized or reversed--in striving for justice.

In a democratic republic such as ours, the role of judges is severely circumscribed. They must apply the constitution and laws as adopted by the founders, legislature, and executive--with the interstitial play provided by our common law system. Some discretion to interpret and obtain a reasonable result is afforded. Even in a hierarchical judicial system that provides room for review and correction on appeal, any more unstructured freedom of judges to ignore or apply rules as their personal predilections suggested could lead to a chaotic, arbitrary, and unpredictable system of jurisprudence, impossible for citizens to comply with in their real worlds because they could not foresee when their conduct was in accord with society's not yet delineated demands. When judges can cut themselves free of the law's dictates, it is not a foregone conclusion that all will see fairness the same way. Some German judges were Nazis; some post-Brown judges were segregationists.

So, the conclusion is clear: judges must follow the law to avoid a kritarchy (2)--except, it is submitted, when that law requires the violation of the essence of mankind's sense of justice. The incongruity between the law and demands of a core right (call it natural justice if you will) must be absolutely clear if a judge is to rely on this fallback duty to the heart of fairness.

In this country, the crisis of conscience was reached most clearly in the contradiction between, on one side, Calhoun and Chief Justice Taney who predicated their views on the assumption that Negroes were inferior to whites and, on the other, Lincoln's and Jefferson's (in his better self) that the Declaration of Independence was decisive in holding that all men are created equal. (3) A subsidiary aspect of that great battle over "race," which dominates our history, was resolved fifty years ago when Brown v. Board of Education (4) overruled Plessy v. Ferguson. (5) The reverberations of that Brown struggle are still being played out. (6)

The judge must decide: does this law violate the essence of my duty to self and humanity. The process is gut wrenching. To society it is often confounding. The battle against fundamental injustice is now being waged in trial courtrooms in the confrontation between Federal Sentencing Guidelines (7) designed to punish by those afar without understanding the unnecessary cruelties that result when real human beings before the court are treated as cyphers rather than individuals. That struggle is not yet resolved, though unrelenting pressure by trial judges and others for rationality and justice may be having some effect. (8)

This Article discusses the exercise of judicial independence by judges who have opposed racism and other legally-sanctioned injustices, as well as judicial failures to oppose injustice. In illustrating the range of options available to judges faced with the prospect of enforcing unjust laws, only one is ruled out: silent acquiescence. In Germany, the Nazi judges' silence, compliance, and active participation in the gravest crimes against humanity serves as a reminder that the duty to decide cases in accordance with statutes, precedent, or regulations cannot be absolute. (9)

As Professor Maria Marcus's article Austria's Pre-War Brown v. Board of Education (10) shows, the Austrian Constitutional Court chose to nullify a 1931 Nazi-inspired effort to separate Jewish and Christian students in Universities rather than to adopt a readily available basis for refusing the case. (11) This judicial choice, made despite pressure and peril, warded off legally imposed university segregation until the Anschluss of Germany and Austria seven years later. (12)

The episode described in Professor Marcus's analysis of the Vienna pre-Nazi court decision protecting Jews from unlawful discrimination in the universities was unusual. Despite strong efforts of President Woodrow Wilson and others to protect the rights of Jews and other minorities after World War I, their protective work and those of treaties on which they insisted proved useless. (13) Central European governments flouted treaty obligations and basic humanity, putting increasing pressure on the Jews, ultimately leading to the Holocaust. (14) Austria, influenced in part by Germany, strongly rejected its own glorious tradition of artistic, economic, and scientific achievements in which the Jews had played such a large role since the turn of the century. The Jews, despite their major contributions to Austria in World War I and afterwards, were declared outcasts, forced into nonpersonhood by the hoodlums and haters of the Right. (15)

The goal of the Nazis was to denigrate, segregate, and destroy. The purpose of Jim Crow laws in the American South--segregation mandated by government as well as by custom--was to dehumanize, segregate, and reduce to peonage. (16) Because of their color, African-Americans suffered gross social and economic disadvantages.

I had the honor of playing a minor role in working with NAACP counsel in Brown v. Board of Education, which ultimately cut the legs out from under Jim Crow and its legal foundation, Plessy v. Ferguson. (17) As a junior faculty member at Columbia Law School, I was introduced to Thurgood Marshall and was entranced by what he and his colleagues were doing at the NAACP Legal Defense Fund to obtain better education for African-Americans. My work involved research, writing and rewriting, listening to the debates, and occasionally interjecting minor comments or tactical considerations: should plaintiffs go for separate but real equality throughout the nation--an impossible position because it would have made it necessary to litigate in every one of the thousands of school districts--or should they insist on the position that segregation was inherently unequal and denigrating? Marshall, Robert Carter, Constance Motley, Jack Greenberg, and many others launched a frontal attack on the separate-but-equal rationale that they and so many others had been preparing for by cases leading up to Brown.

Chief Justice Earl Warren, in a magnificent piece of judicial statesmanship, pulled the Supreme Court Justices together in Brown. The opinion had an enormous impact. President Eisenhower and the federal legislature were ultimately forced to accept it. Last year, I attended a conference at New York University where a Supreme Court Justice spoke. I asked him during the course of the discussion why the Supreme Court was not more active in developing new protective rights. The response: "The court has an essentially passive, not an active role."

And then I asked, "What about Brown where you reversed Plessy?"

The reply: "Well, Plessy and Brown were different." (18)

Plessy was fundamentally unacceptable. It was so foreign to The Declaration of Independence, the Thirteenth, Fourteenth, and Fifteenth Amendments, and post-World War II changes in demography and sociology that it simply could not be permitted to stand. If all were acknowledged to have been created equal under our founding document of July 4, 1776, then forced legal separation was anathema as a matter of basic foundational pre-constitutional law.

  1. JUDICIAL INDEPENDENCE AND SENIOR FEDERAL JUDGES

    The current sentencing regime in the United States is an instructive starting point for exploring judicial reactions to unjust laws. Federal drug statutes relegate some of the least culpable participants to decades in prison without possibility of parole. Given the large number of drug cases that come before federal judges--some half of all criminal cases (19)--and the grotesque over-sentencing often required, this is no small example of injustice but a problem of national dimension measured in unnecessarily destroyed lives and huge wasted costs to taxpayers. As one of my colleagues put it, "Courage in public life means not only the fortitude to withstand criticism and even outrage, but the strength as well to examine one's conscience and soul and to speak from the truth and conviction that we know lies deep within our hearts." (20)

    The judge who made that statement took senior status to be able to refuse cases that required him to impose lengthy sentences on minor drug offenders. (21) Some judges have relied upon their senior status to decline such cases. (22) In weighing the merits of this action, we are reminded of the advice given to doctors: First, do no harm. Judges should attempt to follow the same precept, which may mean refusing to decide cases in which an unjust result is preordained.

    In following this dictate of morality, senior judges in our federal system may be at an advantage. Senior status is not; as it is almost invariably characterized in the press, "retirement." (23) It is rather a flexible tool permitting the retention by the system of the most experienced jurists at a time in their lives when they may need, or simply desire, to reduce their caseload. (24) Because it permits judges to choose the cases they will hear, it a priori permits them to make decisions about the types of cases they will hear.

    Some may see this as an unfortunate consequence of what is essentially a tool of "human resource" allocation. Admittedly, a decision by a judge not to take a certain category of cases requires that other judges take those cases. This argument from fairness, as Professor Raz puts it, "is that anyone who denies an obligation to obey in a just state take[s] unfair advantage of others who submit to such an obligation." (25)

    In the case of a senior judge refusing to hear drug cases, this argument is largely inapplicable for two reasons. First is that what may be distasteful to one judge may not be to...

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