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Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused*

Published online by Cambridge University Press:  24 April 2015

Michael Stokes Paulsen
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Extract

In 1968, a young Robert Cover wrote what he later called a “short polemic” against judicial complicity in the Vietnam War. “Polemic” is something of an understatement. Cover's short book review of an 1856 abolitionist broadside directed against judicial enforcement of the Fugitive Slave Act became the occasion for a powerful general indictment of morally blind “obedience to, let alone enforcement of, law which violates all that is worthwhile in human community”.

Drawing on the memory of the Holocaust and “the screaming silence of the German people,” Cover excoriated the federal judiciary for “re-main[ing] faithful to its long tradition as executors of immoral law,” in relation to enforcement of the draft laws in the Vietnam War era:

No judge has resigned in protest. No judge has availed himself of the opportunity presented by a draft case to instruct the public on the moral issues of the war. No judge has publicly engaged in creative judicial obstruction of the war effort.

Type
Research Article
Information
Journal of Law and Religion , Volume 7 , Issue 1 , 1989 , pp. 33 - 97
Copyright
Copyright © Center for the Study of Law and Religion at Emory University 1989

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Footnotes

*

Copyright 1990 Michael Stokes Paulsen. All rights reserved.

References

1. Quoted in, Cover, R., Justice Accused vii (1975)Google Scholar [hereinafter Justice Accused].

2. Cover, Book Review, 68 Colum. L. Rev. 1003, 1005 (1968)Google Scholar (reviewing Hildreth, R., Atrocious Judges: Lives of Judges Infamous as Tools of Tyrants and Instruments of Oppression (1856)Google Scholar [hereinafter Cover Review].

3. Id. at 1005-06 (footnotes omitted).

4. Id. at 1006.

5. Id. (emphasis added).

6. Id. at 1007.

7. Id. (emphasis added).

8. The phrase is Thomas Jefferson's as it appears in the Declaration of American Independence. The concepts of positive law and natural law are defined more fully in the discussion infra at 206-214.

9. The book is equally about Vietnam. Indeed, it is likely that Cover had the war in mind during the period he wrote the book. The fall of Saigon occurred in 1975, the year of the book's publication.

10. 410 U.S. 113 (1973).

11. I have considered other great injustices of American law in this century—and there are distressingly many of them—and do not in any way mean to diminish them. The most severe, to my mind, are the internment in concentration camps of Japanese-Americans during World War II, based upon a presumption of disloyalty and dangerousness based on race, ratified by the Supreme Court in Korematsu v. United States, 323 U.S. 214 (1944), and the institution of legally-enforced segregation and racial discrimination, made possible by the Supreme Court in Plessy v. Ferguson, 163 U.S. 537 (1896), and allowed to stand until Brown v. Board of Education, 347 U.S. 483 (1954). If, however, it is agreed that abortion on demand is the deliberate, wrongful taking of innocent human life in its preborn state (an empirical and ethical proposition no less compelling than the empirical/ethical propositions that separate is inherently unequal and discriminatory and that it is per se illegitimate to use national origin as a proxy criterion for identifying threats to national security), the magnitude and depths of Roe's injustice are unparalleled: the killing, affirmatively sanctioned by law, of some twenty-four million children since 1973.

12. See infra at 71.

13. The term “noninterpretivist” appears to have been coined by Stanford Law School Professor Thomas Grey to describe judicial review of legislative actions in a manner not limited to enforcing values provided by the constitutional text, but including extra-textual values and reasoning. Such a method does not purport to be limited to “interpretation” of the text. See Grey, , Do We Have an Unwritten Constitution?, 25 Stan. L. Rev. 703, 707 (1975)Google Scholar. See discussion infra, at 68-72. See also Ely, J., Democracy and Distrust 1, n.1 (1980)Google Scholar.

14. Justice Accused, at 197-259. The basic conflict is between the moral imperative of following conscience and the formal, role-dictated duty of adherence to the rule of law.

15. Justice Accused, at 6.

16. Id. at 8.

17. Cover Review, supra, note 2, at 1005.

18. Cover early on identifies the natural law tradition as a major factor in antislavery thinking and later notes, in passing, the large body of scholarship concerning the “strong relationship of antislavery to the substance and style of religious movements” (Justice Accused at 211). But he does not draw the connection between these two points.

Cover's neglect of this connection seems the consequence of a considered choice not to explore the roots of natural law jurisprudence but instead to emphasize its contemporary application to antislavery, and its function in creating the moral-formal conflict of the judge: “[I]f we wish to understand the late eighteenth- and nineteenth-century American jurist in his use of natural law, a brief excursion into the past is necessary. But, we ought not forget that the more immediate sources leave the freshest and deepest trails upon the mind. Thus, it is more important that we understand Blackstone than Aristotle, Otis than Aquinas, Montesquieu than Justinian. For, if the eighteenth century is a confused amalgam of classical traditions, it is more helpful to appreciate the contours of the confusion than to isolate the pure classical threads from which it was woven.” Justice Accused, at 9.

19. Berman, H., Law and Revolution 144–48 (1983)Google Scholar.

20. Id. at 145. Cf. id. at 562.

21. Id. at 146.

22. See Jacobsohn, G., The Supreme Court and the Decline of Constitutional Aspiration (1987)Google Scholar.

23. Cf. Tribe, L., American Constitutional Law Chapter 13 (2d ed. 1988)Google Scholar.

24. The phrase is most commonly associated with Eighth Amendment jurisprudence. See Trop v. Dulles, 356 U.S. 86, 101 (1958) (plurality opinion). See generally Furman v. Georgia, 408 U.S. 238 (1972).

25. Professor John Hart Ely, relying in part on Cover's book, embarrasses natural law with examples of its manipulability in the hands of advocates. Ely shows that natural law was invoked on both sides of the slavery issue, in multiple ways. Natural law was invoked to prove both the natural equality of all men and the inferiority of blacks (J. Ely, supra note 13 at 51 & n.46; it was invoked to prove both an inalienable right of secession and the natural law of national supremacy (id. at 51 & n. 43); and it was invoked to prove the natural justice of democracy and the natural rights of property and vested interests (id. at 51). More recently, natural law arguments were raised on both sides of the segregation controversy (id. at 51 & n. 43).

Cover himself notes that, with respect to slavery, “judicial recourse to ‘natural law’. … [began] to sound less and less like an appeal to commonly accepted sources of principle and more like a party slogan” such that “the natural law condemnation of slavery came to mean not a common cultural tradition but a personal (or at least, party) preference.” Justice Accused, at 29-30. Cover emphasizes the radical abolitionists' response to this principle: “Because ‘nature’ no longer spoke with a single voice, only the judge's conscience ultimately determined the source of right.” Justice Accused, at 152.

26. Justice Accused, at 24 (“Because Bentham saw how well the ambiguity of nature could be turned equally to revolutionary and reactionary purposes, he concluded that the terms were literally meaningless. In his famous phrase, that natural rights were ‘nonsense,’ natural and imprescriptible rights, ‘nonsense on stilts.’ “).

27. See id.

28. Sherry, , The Founders' Unwritten Constitution, 54 U. Chi. L. Rev. 1127 (1987)CrossRefGoogle Scholar. Cf. J. Ely, supra note 13, at 39.

29. Extreme secularists—a small, but powerfully vocal minority—occasionally argue that religious values must be excluded from any lawmaking role, on the ground that the influence of such values violates the establishment clause of the first amendment. A particularly outrageous example of unabashed hostility to religious values in lawmaking is Justice Blackmun's dissent in Bowers v. Hardwick, 478 U.S. 186, 211-12 (1986) (equating religious values with religious “intolerance” that must be treated as suspectly as racial animus). For an equally bizarre approach, see Webster v. Reproductive Health Services, 109 S. Ct. 3040, 3082-85 (1989) (Stevens, J., concurring and dissenting).

The argument is made plausible only by the “purpose” prong of the Supreme Court's tripartite test for establishment clause violations, an analysis riddled with its own problems. See Edwards v. Aguillard, 482 U.S. 578, 610-640 (1987) (Scalia, J., dissenting). Even so, the test only invalidates laws motivated wholly by a desire to advance religion, not laws intended to accommodate the free exercise of religion or laws that reflect underlying religious or moral values. See Bowen v. Kendrick, 108 S. Ct. 2562, 2571 & n.8 (1988); Harris v. McRae, 448 U.S. 297, 319-20 (1980).

30. An apparent exception, relevant to the theme of abortion, is the modern view that legislators should not “impose their morality on others” or “legislate morality”—a common argument for the “pro-choice” position. The argument is not solid. All law is the “imposition” of value choices. The argument really is that, in the presence of moral disagreement, policymakers should always choose to permit certain conduct rather than restrict it, simply because of the existence of moral disagreement. This itself is an assertion of a moral value judgment about what should be done when values conflict. As such, it is an example of the point made in the text—that the content of the values that should inform legislative judgments is often hotly debated.

31. Supra note 25.

32. A similar approach can be taken with respect to the moral-formal dilemma confronted by pro-life judges, and the appropriate range of responses, discussed infra at 240-263. While I sketch here the natural law moral argument against abortion, see infra at 214-217, it is unnecessary to agree with this argument in order to understand the dilemma of pro-life judges who take that conclusion as a given, or to understand how acceptance of such a view as a moral starting point places today's pro-life judges in precisely the same quandary as the pro-freedom judges of antebellum America.

33. Justice Accused at 17, quoting Somersett's Case.

34. See, e.g., id. at 19.

35. Id. (emphasis added).

36. See discussion infra at 50-52.

37. Justice Accused, at 184-89.

38. Justice Accused, at 259.

39. For example, there is a decided difference in tone in the treatment of the Wisconsin and Ohio events in Cover's review of Atrocious Judges in 1968 and in Justice Accused in 1975. Compare Cover Review, supra note 2, at 1004, 1007 with Justice Accused at 184-88. What Cover had earlier regarded as a “rare and noteworthy act of courage and sound reasoning” on the part of the Wisconsin Supreme Court is portrayed in Justice Accused as the last gasp of extreme abolitionist legal strategy, with a state court quixotically purporting to overrule the U.S. Supreme Court. The Ohio judge's actions, once normative, are in Justice Accused merely part of the escalating pattern of conflict. As one reads the later chapters of the book, one cannot help feeling that Cover's respect for the antislavery judges who nonetheless enforced the law has increased relative to that held for the rabble-rousers in the West: Men like Story, McLean, Shaw and Swan wrestled seriously with the conflict and reached gut-wrenching, heartbreaking personal decisions. The Wisconsin Supreme Court was insolent, defiant, and unbothered by competing considerations of the rule of law; its approach was morally simplistic. At least that is how the narrative of Justice Accused seems designed to make the reader feel. See also Justice Accused, at 228-29 (apologetic explanation and application of “dissonance hypothesis” to antislavery judges).

40. See discussion infra, at 50-52.

41. In one of the most interesting chapters of the book, Cover shows how the most radical of the abolitionists, followers of William Lloyd Garrison and Wendell Phillips, shared the formal assumptions of the federal judiciary. Justice Accused, supra note 1, at 149-58. See discussion infra at 63-65.

42. See, e.g., Psalm 139:13–16Google Scholar; Luke 1:41–44Google Scholar; Exodus 20:13Google Scholar; Jeremiah 1:5Google Scholar. For an excellent short compendium of the religious moral arguments against abortion, made by the major world religious faiths, see Spero, Rabbi Aryeh, Therefore Choose Life: How the Great Faiths View Abortion, 48 Policy Review 38–44 (Spring 1989)Google ScholarPubMed.

43. See Justice Accused, at 172-74.

44. As cited in Justice Accused, at 152.

45. Id. at 6.

46. See Chapters Five and Six, at 83-118.

47. Id. at 93-99, 101-05.

48. Id. at 87-99.

49. Id. The famous counterexample is, of course, Dred Scott, which involved in part the application of choice of law principles to determine the legal status of a slave (who had traversed free soil with his master), for purposes of determining his legal capacity in federal courts. Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1856). In addition, Dred Scott's holding that the national government could not interfere with the right to own property in slaves implicitly repudiated the rule of Somersett's Case that slavery could be permitted only as a consequence of local law. If, therefore, as Cover writes, “to refuse to accept Somersett's Case as a general rule of international law would be to universalize slavery,” (Justice Accused, at 91), the logic of Dred Scott would, as Lincoln feared, require even northern states to permit slavery. See Lincoln, , Complete Works, III, 1–15Google Scholar, (Speech delivered at Springfield, Illinois at the close of the Republican State Convention by which Mr. Lincoln had been named as their candidate for United States Senator, June 16, 1858). For further discussion of the Dred Scott case, see infra at 65-67.

50. Id. at 98.

51. Id. at 35, 62.

52. Id. at 62. (“Finally, the court can assert a sort of bend-over-backward principle by which there is an obligation to achieve a profreedom result unless there is very specific, concrete positive law that prevents it. … [This approach] was seldom used and, as time went on, explicitly disowned.”).

53. Id.

54. Id. at 43. The language is from Virginia's constitution of 1776. Several other states—all in the North—employed very similar language. Id.

55. Id. at 34.

56. Cover's quasi-sociological observations would have more force if applied to different north-south state court interpretations of language in the same constitution, i.e., the U.S. Constitution.

57. Hudgins v. Wrights, 11 Va. (1 Hen. & M.) 133 (Va. 1806). Either Cover or the Virginia Reports consistently misspells the caption.

58. Justice Accused, at 50-51.

59. See discussion infra, at 62-63.

60. The question in the case was whether an Indian was slave or free. The Virginia high court agreed that the Indian was free, based on the unrebutted presumption accorded his race.

61. Justice Accused, at 51.

62. See generally Powell, , The Original Understanding of Original Intent, 98 Harv. L. Rev. (1985)CrossRefGoogle Scholar; Amar, , Of Sovereignty and Federalism, 96 Yale L.J. 1425, 1429–26 (1987)CrossRefGoogle Scholar. See, e.g., State v. Post and State v. Van Buren, 20 N.J.L. 368 (1845) (discussed in text infra at 57-58: “We will in the first place endeavor to discover, if we can, from the language of the first section of the bill of rights, what was intended by the framers of the constitution and the people, who adopted it.” Id. at 373 (Nevius, J.) (emphasis added); id. at 380 (Randolph, J.) (referring to intentions of “framers” and “adopters”).

63. This propositon is rapidly regaining the status of a truism. J. Ely, Democracy and Distrust, supra note 13, at 17; see Powell, The Original Understanding of Original Intent, supra note 62. Especially in constitutional interpretation, where the relevant “intent” is that of a diverse collective—literally the whole of the People, acting through a variety of agencies (e.g., the Philadelphia convention, both house of Congress, state legislatures, state ratifying conventions)—extrinsic evidence of intention on the part of some of these actors is far more problematic than textual evidence of intention.

64. By the same token, it is an equal error of anachronistic reasoning to mistake the original expectations of members of the founding generation about how a textual principle would be applied for the original meaning of the words of the text. The former is, at best, tertiary evidence of the latter. Cf. Powell, supra, note 62, at 887-88, 902-13 (framers believed their specific, subjective intentions would not control interpretation of text). Scholars as diverse in their views as Raoul Berger and Leonard Levy succumb to this type of error—Berger, in setting forth the “original intent” of the framers, Levy in attacking such a straw man version of originalism. Berger, R., Government by Judiciary (1977)Google Scholar; Levy, L., Original Intent and the Framers' Constitution (1988)Google Scholar.

Moreover, while original expectations about the effect of a provision may provide important evidence of original meaning, the weight to be accorded such evidence generally diminishes with time and changed circumstances. Let me emphasize that the original meaning of the text — the legal rule or principle constitutionalized — does not change with time and circumstances, only the weight to be accorded contemporaneous expectations about how that principle would be applied as evidence of original meaning. Cf, e.g., McConnell, , On Reading the Constitution, 73 Cornell L. Rev. 359, 362–63 (1988)Google Scholar (historical fact that framers did not believe legislative chaplains to violate establishment clause should not be dispositive in interpreting textual principle of establishment clause); Marsh v. Chambers, 463 U.S. 783, 813-16 (1983) (Brennan, J., dissenting) (drawing similar conclusion). See also infra, note 68 (discussing Brown v. Board of Education, 347 U.S. 483 (1954)).

65. See generally Fallon, , A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189 (1987)CrossRefGoogle Scholar (maintaining that arguments in different categories of constitutional analysis necessarily affect and adjust provisional judgments concerning arguments in other categories).

66. Cf. Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 644-45 (1819) (Marshall, C.J.) (presumption is that Constitution employs language within the ordinary range of its meaning; however, this presumption, can be rebutted by showing, for example, that certain phrases were employed as terms of art); INS v. Cardoza-Fonseca, 480 U.S. 421, 432 n.12 (1987) (similar principle applied in statutory interpretation).

67. Wythe's opinion is unpublished and its content is only inferred from the opinions reversing him. See Justice Accused, at 51-52.

68. By way of contrast, I believe the Equal Protection Clause of the Fourteenth Amendment states a general, but sufficiently definite, principle of color-blindness that compels the conclusion that officially supported racial segregation, or any other form of race-based government classification, is unconstitutional. The text of the Fourteenth Amendment is far less general, and more specifically prohibitory in nature (“No state shall make or enforce any law which shall … deny to any person within its jurisdiction the equal protection of the laws”) than the aspirational, even hortatory language of Virginia's free and equal clause (“All men are by nature equally free”). In this respect Virginia's free and equal clause is (not surprisingly) very similar to the Declaration of Independence: both texts state a principle of natural law, but do not diplace positive law. Moreover, while many persons at the time of the Fourteenth Amendment's adoption may not have expected that the principle of equal protection would logically lead to the eradication of segregation (cf. supra note 64), the evidence is far from persuasive that such a principle — which I believe is necessarily entailed in the words of the amendment — was contrary to the intention of its adopters. Brown v. Board of Education, 347 U.S. 483, 489 (1954); see Bickel, , The Original Understanding and the Segregation Decision, 69 Harv. L. Rev. 1, 63–65 (1955)CrossRefGoogle Scholar. See also Fallon, , A Constructivist Coherence Theory of Constitutional Interpretation, 100 Harv. L. Rev. 1189, 1199, 1278–82 (1987)CrossRefGoogle Scholar. In short, the Equal Protection Clause states a determinate legal command — race-blind administration of the law — that is necessarily inconsistent with de jure racial segregation. And this principle is also consistent with evidence of original meaning, notwithstanding the historical fact that it may have been contrary to the original expectations of many persons at the time of its adoption. By contrast, the state free and equal clauses stated indeterminate, aspirational principles, the application of which as a legal rule invalidating slavery is not a clear or necessary inference from the text, and was contrary to clear evidence of original intent.

69. 20 N.J.L. 368 (1845).

70. See Justice Accused, at 57.

71. 20 N.J.L. at 372 (Nevius, J.).

72. Id. at 375.

73. Id. at 379-81 (Randolph, J.).

74. 11 Va. (1 Hen. & M.) at 141 (1806) (emphasis added).

75. Justice Accused, at 33-41.

76. The “countermajoritarian difficulty” of judicial review receives its classic treatment in Chapter One of Bickel, A., The Least Dangerous Branch (2d ed. 1986)Google Scholar.

77. 5 U.S. (1 Cranch) 137 (1803).

78. Justice Accused, at 27.

79. The argument here is influenced by the writing of numerous constitutional scholars—too many to identify separately. Most important to my thinking on this point are Easterbrook, , An Immutable Vision, The Washington Post Magazine 52, 54 (06 28, 1987)Google Scholar; Bickel, A., The Least Dangerous Branch Chapter One (2d ed. 1986)Google Scholar; and McConnell, , On Reading the Constitution, 73 Cornell L. Rev. 359 (1988)Google Scholar.

My assumption in all of this is that our system of representative democracy, despite all its interest-group politics, pressures for re-election, campaign financing demands, media influence, preference for incumbency and log-rolling (or perhaps because of it, in an ironic 20th century reprise of Federalist No. 10) is a better reflection of popular sovereignty than is government by judiciary. The argument is best made in A. Bickel, The Least Dangerous Branch, supra note 76, at 16-23. See also J. Ely, supra note 13, at 63-69. But cf. Amar, , Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1076–86 (1988)CrossRefGoogle Scholar (legislators less democratic, and judges more so, than customarily believed). I do not here intend to enter this debate of empirical political science. However, even if my assumption is unwarranted, it does not follow that judges should step in to legislate as the true “representatives” of the People, see A. Bickel, supra note 76, at 19; Note, The Senate and the Constitution, 97 Yale L.J. 1111, 1121–30 (1988)Google Scholar. Rather, what follows is that the legislature should be reformed to be more truly representative. Proposals include limiting perpetual re-election of representatives, see Republican Party Platform (1988) (proposing limit on number of terms for U.S. Representatives), or changing the way in which voting determines representation, in order to reflect principles of rotation, quota, and the law of averages. Note, Choosing Representatives by Lottery Voting, 93 Yale L.J. 1283 (1984)CrossRefGoogle Scholar.

A further assumption is that the political branches take seriously their responsibility to consider the constitutionality of legislative acts. See generally Brest, , The Conscientious Legislators' Guide to Constitutional Interpretation, 27 Stan. L. Rev. 585 (1975)CrossRefGoogle Scholar. If the political branches have not considered the constitutional issues attendant upon their actions, there is somewhat less of a justification for deference by the judiciary (though the judiciary could still determine that the legislative choice lies within the range of permissible constructions of broad constitutional language, even if the legislature did not explicitly consider the constitutional question). As Bickel, following James Bradley Thayer, notes, this argument may have a “self-fulfilling prophecy” element. Judicial activism justifies political abdication of constitutional review which justifies judicial activism. A. Bickel, supra, note 76, at 21-22. But the downward spiral could just as well be an upward spiral—judicial restraint being both justified by and encouraging conscientious consideration of constitutional questions by the political branches.

Finally, it should be noted by way of qualification that the argument made in the text does not apply when courts are called upon to resolve a dispute that requires that it choose between the decisions of different representative branches of government, (separation-of-powers questions) or between different levels of representative government (federalism questions). See Morrison v. Olson, 108 S. Ct. 2597, 2625-26 (1988) (Scalia, J., dissenting) (separation of powers); McConnell, , Federalism: Evaluating the Founders' Design, 54 U. Chi. L. Rev. 1484, 1487–88 (1987) (federalism)CrossRefGoogle Scholar. A different political theory is needed to explain the proper role of courts in such constitutional cases.

80. Justice Accused, at 43-50; see especially id. at 50; State v. Post, 20 N.J.L. at 377 (Nevius, J.).

81. Justice Accused at 49.

82. 20 N.J.L. at 372 (Nevius, J.).

83. Id. at 373.

84. Justice Accused, at 150-53.

85. Again, there is a parallel to the pro-life movement, which is divided by the question of whether to work within the system (advocated by groups such as the National Right to Life Committee and Americans United for Life) or engage in active civil disobedience (popularized in recent years by Operation Rescue). See Allen, , Anti-Abortion Movement's Anti-Establishment Face, Wall St. J. 12 8, 1988, at A14 col. 3Google Scholar.

86. While Cover's treatment of the respective legal positions of the two antislavery camps clearly demonstrates the superior intellectual and moral integrity of the Garrisonian view, he again refrains from drawing any conclusion. Instead, the chapter on the formal assumptions of the antislavery forces ends with a bare descriptive analysis: “On the level of theory, then, the issue had been joined by 1845. The solution to the moral-formal dilemma was resignation, according to one school. According to the other, it was judicial enforcement of natural law, preferably through a forced reading of positive law instruments, but if need be, as an act of naked power. Neither of these solutions promised widespread acceptance by the men who sat on the bench. That practical obstacle had to be confronted by the attorneys who confronted these judges and sought relief from them.” Justice Accused, at 158. Fine, but which view was right?

87. Justice Accused, at 156-57.

88. Id. at 156-57 (quoting).

89. 60 U.S. (19 How.) 393 (1856).

90. See Mcpherson, J., Battle Cry of Freedom 170–81 (1988) (collecting authorities)Google Scholar.

91. The index shows that Dred Scott is mentioned only four times, and only in passing. See Justice Accused, at 166, 209, 245, 255.

92. See, e.g., Lincoln, Speech at Sixth Joint Debate with Stephen Douglas, Quincy Ill., Oct. 13, 1858, reprinted in Selected Writings and Speeches of Abraham Lincoln (Williams, T. ed. 1980) at 75–76Google Scholar:

We oppose the Dred Scott decision in a certain way, upon which I ought perhaps to address you a few words. We do not propose that when Dred Scott has been decided to be a slave by the court, we, as a mob, will decide him to be free. We do not propose that, when any other one, or one thousand, shall be decided by that court to be slaves, we will in any violent way disturb the rights of property thus settled; but we nevertheless do oppose that decision as a political rule, which shall be binding on the voter to vote for nobody who thinks it wrong, which shall be binding on members of Congress or the President to favor no measure that does not actually concur with the principles of that decision. We do not propose to be bound by it as a political rule in that way, because we think it lays the foundation not merely of enlarging and spreading out what we consider an evil, but it lays the foundation for spreading that evil into the States themselves. We propose so resisting it as to have it reversed if we can, and a new judicial rule established upon this subject.

See also First Inaugural Address, March 4, 1861, reprinted in id. at 121: “[I]f the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.”

93. Cover alludes briefly to two cases where judges were called on to reject the authority of the Supreme Court specifically, as opposed to rejecting the authority of the Constitution—the Wisconsin Booth cases and Ex Parte Bushnell in Ohio. Justice Accused, at 185-90, 252-56. But Cover does not distinguish this attempted defiance of the Court from defiance of the Constitution in his analysis, possibly because defiance of both was necessarily implicated by the position urged by antislavery advocates in each case. I discuss this point in the abortion context infra at 73-88.

94. See supra at 38, n. 13.

95. Justice Accused, at 155.

96. Even Roe's defenders have candidly acknowledged as much. See Grey, supra note 13, at 707, 708-09.

97. It is a minority, by definition, as Roe invalidates a statute enacted by a state government elected by the people of that state and never repealed. See also infra at 94 n.165 (majority today favors restrictive abortion laws).

98. of course, the very form of this intuition begs the question of whether preborn human life is merely a part of a woman's body with which she may do as she pleases, or another life worthy of the protection of society. See infra at 69-71.

99. See, e.g. Ely, , The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 Yale L.J. 920, 935–37 (1973) (footnote omitted)CrossRefGoogle ScholarPubMed:

What is frightening about Roe is that this super-protected right is not inferable from the language of the Constitution, the framers' thinking respecting the specific problem in issue, any general value derivable from the provisions they included, or the nation's governmental structure. … And that, I believe … is a charge that can responsibly be leveled at no other decision of the past twenty years. At times the inferences the Court has drawn from the values the Constitution marks for special protection have been controversial, even shaky, but never before has its sense of an obligation to draw one been so obviously lacking.

See also Perry, M., Morality, Politics, and Law (1988) at 175Google Scholar: “I strongly doubt that sensitive application of the constitutional principle of due process can support the conclusion that a state may not outlaw previability abortions of any sort. Such a conclusion seems to me to require a premise—that the protection of fetal life is not a good of sufficient importance—obviously not entailed by that principle.”

100. See Grey, supra note 13, at 707.

101. The Court specifically declined to recognize any rights of the fetus as a “person” within the meaning of the Fourteenth Amendment. 410 U.S. at 158. The Court recognized only an interest in the state in protecting potential human life. Cf. id. at 150, 162-63. In striking the “balance” between the rights of the mother and the interests of the state, courts have tended toward an increasingly broad right to abortion on demand, free from state regulation to protect the interests of the state, not those of the fetus, see e.g. Thornburgh v. Am. C. of Obstetricians and Gynecologists, 476 U.S. 747 (1986); City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983), at least until the Court's recent decision in Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989), began to remedy the resulting imbalance.

The Roe Court's narrow reading of “person” in the Fourteenth Amendment was by no means a necessary one, given the “personhood” status of purely juridical entities like corporations. Even if the Court does not agree that the Constitution of its own force requires such a result, if a legislative body empowered to construe the Fourteenth Amendment in the course of enacting laws (as Congress is under section five of that amendment) found that conceived but preborn humans are “persons”, the term is broad enough, and the original intent of the adopters sufficiently obscure, that such an interpretation cannot be deemed outside the bounds allowed by the words of the text. For a persuasive argument that Congress can and should make such a finding by statute, see Galebach, , A Human Life Statute, 7 The Human Life Review 3 (Winter 1981)Google ScholarPubMed.

That argument differs from an argument that the Supreme Court could discern in the fourteenth amendment's terms “person” and “life” a natural law principle invalidating legislative acts that allow or authorize abortion. On this view, laws permitting abortion would be unconstitutional. Some pro-life advocates make this argument, which is something of a reprise of the Utopian abolitionist's natural law arguments for the unconstitutionality of slavery, with only a slightly better textual hook. See, e.g., Brief Amicus Curiae of Catholics United for Life, et al. in Webster v. Reproductive Health Services, Inc., No. 88-605. The better view is that the language of the Constitution admits of legislative choice on the issue of abortion, including national legislative choice by Congress under section 5 of the Fourteenth Amendment.

102. It is interesting to contrast Roe v. Wade with the decision of the Federal Constitutional Court of West Germany, under its constitution, invalidating a legislative act that would permit abortion in the first three months of pregnancy. Judgment of 25 Feb. 1975, 39 Bverfg 1-95 (1975). The opinion is discussed and translated in 9 J. Marshall L. Rev. 551 (1976)Google Scholar. See also Kommers, , Abortion and Constitution: United States and West Germany, 25 Am. J. of Comparative Law 255 (1977)CrossRefGoogle ScholarPubMed; Currie, , Positive and Negative Constitutional Rights, 53 U. Chi. L. Rev. 864, 868–72 (1986)CrossRefGoogle Scholar.

103. Amar, , Philadelphia Revisited: Amending the Constitution Outside Article V, 55 U. Chi. L. Rev. 1043, 1073–1074 & nn. 109, 110, 116 (1988)CrossRefGoogle Scholar (collecting authorities, including Locke, Jefferson, Story, and Lincoln, for proposition of natural law right of majoritarian democracy). See also J. Ely, supra, note 13, at 53.

104. Noninterpretive judicial activism circumvents the legislative process, frustrating representative democracy. It is at least arguable that the notion of “due process of law,” as operationally defined by a Constitution that prescribes the processes of government and the division and limitation of powers therein, is violated when the judicial branch makes a law. Cf. Linde, , Due Process of Lawmaking, 55 Neb. L. Rev. 197 (1975)Google Scholar; id. at 254.

105. The more troubling question is the one posed by Justice O'Connor at oral argument in the Webster case: “Do you think there is no fundamental right to decide whether to have a child or not? … Do you think that the state has the right to, if in a future century we had a serious overpopulation problem, has a right to require women to have abortions after so many children?” The Washington Post (April 27, 1989) A16 col. 2.

The answer is that the state may not have such a “right,” in the sense that such a policy would plainly contravene natural law. However, it is equally plain that legislative enactment of such a positive law policy, under the analysis set forth in the text, is not foreclosed by the Constitution. In such a case of straightforward moral-formal conflict between natural law and positive law, the judge should decline to act in complicity with the positive law evil, and should actively resist it in every way consistent with the judicial role and, further (if necessary), by quitting the bench. This ethic is laid out in some detail in the immediately following sections, section V, infra, at 73-88 and section VI, infra, at 88-96. I submit that the judge confronted with the hypothesized situation stands in essentially the same position as the judge called upon to enforce Roe v. Wade as positive law, and should respond in similar fashion.

106. Justice Accused, at 153. See also id. at 151 (“This obligation of judicial obedience was, itself, derived from natural law justifications of the state—social contract in various forms.”).

107. Cover Review, supra note 2, at 1006, (footnotes omitted).

108. Justice Accused, at 181 (prominent anti-slavery lawyer Richard Henry Dana argued that nonparticipation was a fruitless strategy). See Forer, , The Role of Conscience in Judicial Decision-Making, in The Weightier Matters of the Law 285, 301 n.35 (Witte, J. & Alexander, F. eds. 1988)Google Scholar (Judge describes her own practice of recusal in death penalty cases as having the result of “preservation of my own moral integrity at the price of submitting defendants to a court composed of ‘death qualified’ judges.”); Hekman, R., Justice for the Unborn 163 (1984)Google Scholar (rejecting notion that a judge's moral concern for the unborn requires disqualification in abortion cases).

109. Cf. Justice Accused at 228 n* (noting that moral-formal conflict in a specific case often triggered recognition by the judge of a previously latent, pervasive conflict between his judicial role and his stated moral principles); Ledewitz, , An Essay Concerning Judicial Resignation and Non-Cooperation in the Presence of Evil, 27 Duq. L. Rev. 1, 16 (1988)Google Scholar (“The very fact that abortion is legal offers tremendous legitimization to abortion. … Thus, it may not be possible to remain a judge at all in a society that allows, and encourages, abortion.”).

110. 109 S. Ct. at 3057 (plurality opinion).

111. Justice Accused, at 164.

112. See generally Note, The Necessity Defense in Abortion Clinic Trespass Cases, 32 St. Louis U.L.J. 523 (1987)Google Scholar. See, e.g., Northeast Women's Center, Inc. v. McMonagle, 868 F.2d 1342 (3rd Cir.) cert, denied, 110 S. Ct. 261 (1989); Cleveland v. Municipality of Anchorage, 631 P.2d 1073 (Alaska 1981); Gaetano v. United States, 406 A.2d 1291 (D.C. 1979); People v. Stiso, 93 Ill. App. 3d 101, 416 N.E.2d 1209 (1981); People v. Krizka, 92 Ill. App. 3d 288, 416 N.E.2d 36 (1980); Sigma Reproductive Health Center v. Maryland, 297 Md. 660, 467 A.2d 483 (1983); Minnesota v. Rasmussen, 47 U.S.L.W. 2331 (Minn. Mun. 1978); City of Cape Girardeau v. Jones, 725 S.W.2d 904, 907, n.3 (Mo. Ct. App. 1987); Fairfield Commons Condominium Ass'n v. Stasa, 30 Ohio App. 3d 11, 506 N.E.2d 237 (1985); City of St. Louis v. Klocker, 637 S.W.2d 174 (Mo. Ct. App. 1982); Hoffart v. State, 686 S.W.2d 259 (Tex. Ct. App. 1985); State v. Horn, 126 Wis. 2d 447, 377 N.W.2d 176 (Wis. Ct. App. 1985), aff'd on other grounds, 139 Wis. 2d 473, 407 N.W.2d 854 (1987).

In Webster, the Supreme Court abstained from holding unconstitutional the portion of Missouri's statute declaring that “[t]he life of each human being begins at conception,” and that “[u]nborn children have protectable interests in life, health, and well-being.” 109 S. Ct. at 3049-50. In light of Webster, an interesting question would be presented were Missouri courts again confronted with the necessity defense, as they were in City of St. Louis v. Klocker, supra. If it does not violate the Constitution for a state to declare a fundamental policy recognizing the right to life of conceived, but unborn persons, as relevant to its criminal and tort law, then that policy, embodied in state law, may supply the “justification” for the defendants' otherwise unlawful actions taken in the name of protecting the right to life of the unborn.

113. Justice Accused at 190.

114. Cover Review, supra note 2, at 1005-06.

115. This in itself is an argument for clear conceptual separation of positive law and natural law. It was best expressed by H.L.A. Hart as “the danger that law and its authority may be dissolved in man's conceptions of what law ought to be and the danger that the existing law may supplant morality as the final test of conduct and so escape criticism.” Hart, , Positivism and the Separation of the Law and Morals, 71 Harv. L. Rev. 593, 598 (1958)CrossRefGoogle Scholar.

116. The plurality and concurring opinions in Webster are most to be criticized on this ground. Only Justice Scalia's concurrence contains any hint of moral outrage against Roe. The opinions of the plurality and Justice O'Connor are dry, technical, and amoral. Even the opinions' legal analysis tends at times to be conclusory; the lawlessness of Roe is never attacked head-on. As such, the opinions carry relatively little moral weight in the battle against the injustice of legal abortion on demand. The justices could as well have been discussing some inconvenient and arguable point of interpretation of bankruptcy law.

117. See Justice Accused at 34 (courts “uniformly recognized a hierarchy of sources of law for application in which “natural law” was subordinate to constitutions, statutes, and well-settled precedent.”) On this view, Roe, to the extent “settled,” is positive law which lower courts must follow. This argument, however, proves at most that natural law arguments are not sufficient themselves to displace Roe. But as noted above, there are arguments aplenty from positive law principles against the Supreme Court's Roe opinion. See supra at 67-72.

118. See infra at 82-88.

119. I use the situation of lower federal court judges as illustrative of the situation of all lower court judges, state and federal, even though there may be grounds for distinguishing between these two categories. Those differences are not critical to the argument made here.

120. The same moral-formal dilemma would be presented even if Roe is overruled, as many States would for some time retain lax abortion laws, and circumstances would arise calling for judicial enforcement of such laws. Much of the analysis in the text applies to this possible, perhaps likely, future situation, with the obvious difference that the legitimacy of pro-abortion statutes as positive law would not be open to challenge in the same way as Roe is challenged as illegitimate. The moral illegitimacy of pro-abortion statutes (the natural law question), and the duties incumbent upon the judge to refuse to enforce such statutes, parallel the analysis in the text at this point with respect to the duty to refuse to enforce Roe.

121. The judge should also be prepared to counter the argument made below that a lower court judge is not bound to enforce clearly wrong constitutional decisions of higher courts in the appellate chain. See infra at 82-88.

122. The approach of Judge Forer, Forer, supra note 108, at 301 n.35 is precisely the wrong one. Forer refuses in advance, “to sit on cases in which the death penalty has been demanded,” as a matter of conscientious principle, though recognizing that this preserves her moral integrity at the expense of abdication of the bench to “death qualified” judges. At the same time, she calls for greater “breathing space for judicial interpretation in order to avoid violence and manifest unfairness.” Forer thus combines the worst of both worlds—she is both prepared to abdicate the moral responsibility of the judge and to advocate judicial activism.

123. In some appellate cases it may have no effect at all, being little different from a dissent; in some trial cases, it may simply result in reassignment of the lawsuit to a different judge.

124. See Justice Accused, at 226-29.

125. In a thoughtful essay making some arguments similar to those made here, Professor Bruce Ledewitz argues that “[i]f a judge were to recuse himself when the law is seen as too evil to enforce, his course would be considered by the community of judges to be a failure to do his job. … [M]ost judges feel that one either is a judge or not and that a judge simply must enforce whatever the law is. It seems that resignation is the only form of non-cooperation open to a sitting judge.” Ledewitz, supra note 109, at 33.

As another commentator has observed, judicial councils' authority to discipline for improper “administration” could cover a wide range of conduct, and involve sanctions against Article III judges tantamount to removal from office (albeit with pay)—by ordering that no further cases be assigned the sanctioned judge. Note, Unnecessary and Improper: The Judicial Councils Reform and Judicial Conduct and Disability Act of 1980, 94 Yale L.J. 1117, 1122-1125, 1132 (1985)Google Scholar.

126. Judge Thomas Gee of the Fifth Circuit, in a short but powerful opinion on remand of the Supreme Court's decision in United Steelworkers of America v. Weber, 443 U.S. 193 (1979), which had upheld against Title VII challenge a racial quota adopted by a private employer, made clear that he would not obey a mandate from a reviewing court that was immoral, as well as legally wrong. Judge Gee found the Supreme Court's construction of the statute to be plainly wrong and “tragic” in its departure from color-blindness under the Constitution. He continued:

I do not say that the Court's decision is immoral or unjust—indeed, in some basic sense it may well represent true justice. … Subordinate magistrates such as I must either obey the orders of higher authority or yield up their posts to those who will. I obey, since in my view the action required of me by the Court's mandate is only to follow a mistaken course and not an evil one.

Weber v. Kaiser Aluminum & Chem. Corp., 611 F. 2d 132, 133 (5th Cir. 1980).

127. Cover relates the story of one anti-slavery lawyer urging a federal district court to purposefully disobey the rulings of the Supreme Court in Prigg v. Pennsylvania and Ableman v. Booth. Justice Accused, at 188-89. Rufus Spalding argued that “‘so glaringly unjust a decision as the affirmation of the constitutionality of [the Fugitive Slave Act of 1850] can bind no one.’ He went on to state that were he in the judge's place, he would, in violation of those decisions, declare the act unconstitutional ‘though in thus doing, I should risk an impeachment before the Senate of my Country; and, sir, should such an impeachment work my removal from office I should proudly embrace it as a greater honor than has yet fallen to the lot of any judicial officer of the United States.’” Id. at 189.

128. Judge Hekman tells the story of the case and his ordeal in Herman, R., Justice for the Unborn (1984)Google Scholar. Judge Hekman's opinion is reprinted as Appendix A to the book, at 151-65.

129. The extent to which a substantive evil infects a larger and basically “just” system may affect the determination of whether acceptance of a role within that system is acquiescence in or support for the evil as well as the system. The question is inherently one of degree and judgment. The problem parallels that of when a substantive evil has become sufficiently systemic as to justify repudiation of the system—i.e., the question of when the right to revolution, or violent civil disobedience, should be exercised. This problem is discussed infra at 91-93.

130. Compare Lincoln's argument against the binding authority of Dred Scott as controlling other cases or as a political rule constraining the actions of the legislative and executive branches, supra, at 67 n.92.

131. Veto Message, July 10, 1832, quoted in Gunther, G., Constitutional Law 22 (11th ed. 1985)Google Scholar.

132. See Hutto v. Davis, 454 U.S. 370, 374-75 (1982) (per curiam) (Court of Appeals, in failing to follow precedent “could be viewed as having ignored … the hierarchy of the federal court system created by the Constitution and Congress. Admittedly, the Members of this Court decide cases ‘by virtue of their commissions, not their competence.’ … But unless we wish anarchy to prevail within the federal judicial system, a precedent of this Court must be followed by the lower federal courts no matter how misguided the judges of those courts may think it to be.”) Given the circularity of the basic argument—lower courts must follow Supreme Court cases because Supreme Court cases say so—the arguments in Hutto should be scrutinized carefully. As argued below, the judicial hierarchy is a creature of Congress more than of the Constitution itself, and the hierarchy has a means of correcting a lack of fealty to that hierarchy-certiorari and reversal. Hutto's concession that the Supreme Court justices' authority comes from their commissions, not their competence, strengthens the argument for “underruling”—all federal judges, at least, hold their authority under equivalent commissions. See Amar, , A Neo-Federalist View of Article III: Separating the Two Tiers of Federal Jurisdiction, 65 B.U.L. Rev. 205, 235–38 (1985)Google Scholar. Only if lower court “underruling” truly threatens “anarchy” is there a strong case against it (see discussion infra at 86-87)—and that case flows only from pragmatic concerns, not from the Constitution or the judge's oath of office. Moreover, the “anarchy” argument of Hutto, if taken seriously, is an indictment also against Supreme Court justices who refuse to acquiesce in constitutional precedents with which they disagree. Justices Brennan and Marshall, for example, vote to grant certiorari and to vacate the death sentence in every case in which such a sentence is involved, see, e.g., Marek v. Dugger, 110 S. Ct. 224 (1989) (dissenting from denial of certiorari), a tactic that is either steadfast adherence to principle or anarchistic judicial obstructionism, depending on one's point of view.

133. See generally Amar, supra note 132 at 220-222, 235-238.

134. Amar, supra note 132.

135. See id. at 220, n.59; id. at 221, n.60; id. at 258, n.170.

136. See Note, Lower Court Disapproval of Supreme Court Precedent, 60 Va. L. Rev. 494, 495 (1974)Google Scholar (“[I]t is unclear exactly what it means for a lower court to be ‘bound’ by a prior decision. As a practical matter, since the Supreme Court cannot hire and fire judges, a lower court is bound only in the sense that it can be reversed on appeal.”). But cf. supra at 79-81 (discussing administrative sanctions within the judicial branch) and 81 (case of state Judge Hekman).

137. See generally Amar, supra note 132.

138. The contrast between being an “inferior” and being a “subordinate” is one best illustrated by comparison with a proper view of the executive Power under Article II. The President is, at least in theory, head of a unitary executive branch. (The Constitution vests the executive power in “a President,” U.S. Const. Art. II, § 1, as contrasted with the judicial Power, which is vested in “one Supreme Court, and in such inferior Courts as the Congress may … establish.” U.S. Const. Art. III, § 1.) All executive branch officers therefore must be both inferior to the President, in the sense that their executive actions can be countermanded by the President (that is, they can be “reversed”), and subordinate to the President, in the sense that they are both appointed by the President (in some cases with Senate advice and consent) and removable by the President. See generally Myers v. United States, 272 U.S. 52 (1926); Humphrey's Executor v. United States, 295 U.S. 602 (1935); Bowsher v. Synar, 478 U.S. 714 (1986). The first aspect of presidential control consists in being able to require that an officer's decision conform to the President's directives; the second and significantly reinforcing aspect of presidential control is the ability of the President to hire and fire his subordinates, so as to assure himself of having officers who will loyally carry out his directives. The Supreme Court's recent decision in the independent counsel case, Morrison v. Olson, 108 S. Ct. 2597 (1988), is a significant impairment of this model, but the central point of contrast with the judicial Power under Article III remains valid: lower federal court judges (and state court judges) are inferior to reviewing courts in the hierarchy, but it is significant that part of the independence of these judges is that they do not owe their commissions to, and cannot be removed by, those who may countermand their decisions.

139. There is less of a “threatening” character to judicial underruling of Supreme Court precedents than to, for example, the Executive's refusal to enforce Supreme Court judgments (as opposed to non-acquiescence in the judgment as precedent in another case). When a lower court explicitly declines to follow controlling precedent, or the executive relitigates a question in all other cases to which a prior judgment does not by its terms extend, the Supreme Court may review and reaffirm its earlier judgment. Where a lower court, or the Executive, declines to enforce Supreme Court judgments, a true constitutional conflict is created.

140. 310 U.S. 586 (1940).

141. 319 U.S. 624 (1943).

142. The district court thought that, “[o]rdinarily,” it would be constrained to follow Supreme Court precedent “whether we agreed with it or not” but noted also that “decisions are but evidences of the law and not the law itself.” 47 F. Supp. 251, 252-253 (D. W. Va. 1942). The reasons for deference—the need for “orderly administration of justice”—were found not to apply where the lower court thought the Supreme Court likely to reverse itself on the issue, an hypothesis supported by a legal-realist counting of noses and taking into account changes in Court personnel. The district court stated: “we feel that we would be recreant to our duty as judges, if through a blind following of a decision which the Supreme Court itself has thus impaired as an authority, we should deny protection to rights which we regard as among the most sacred of those protected by constitutional guaranties.” Id. at 253.

The decision of the three-judge district court in Browder v. Gayle, 142 F. Supp. 707 (M.D. Ala.), aff'd per curiam 352 U.S. 903 (1956), is another interesting example. Browder involved a challenge to segregated municipal buses in Montgomery, Alabama. The case was, in a sense, squarely governed by Plessy v. Ferguson. However, Brown v. Board of Education had disapproved Plessy in the context of public education (and the opinion reads as limited to that context). The district court in Browder, not declaring that judicial precedents are “evidence of the law and not the law itself” (142 F. Supp. at 716), deemed itself not to be bound by Plessy, effectively underruling a case the Supreme Court had declined to overrule explicitly in Brown. The Supreme Court did, however, affirm the district court's decision in Browder.

The situation confronting lower courts today on the issue of abortion, in light of the Supreme Court's decision in Webster, is strikingly similar to the situations confronting the lower courts in Barnette and Browder. My rationale for the power of lower courts to “under-rule” Supreme Court decisions is not, however, limited to the special circumstances identified by the district court in Barnette. And specifically with respect to abortion, the power of lower courts to underrule Roe is not dependent on any particular reading of Webster.

143. See Hutto v. Davis, 454 U.S. at 375.

144. The considerations involved in stare decisis are whether the values of predictability, stability, and settled expectations outweigh the cost of continued adherence to an erroneous rule of law, a weighing that may be affected by whether the erroneous decision is a constitutional one, not easily corrected by the ordinary political process, or one of statutory construction, correctable by the legislature. Thornburgh, 476 U.S. at 786–88 (White, J., dissenting)Google Scholar; cf. Patterson v. McLean Credit Union, 109 S.Ct. 2363, 2370 (1989).

145. It is appropriate for lower courts considering the Supreme Court's constitutional judgments to accord the same degree of deference to the Court as I have argued above that courts should give to the democratic branches—invalidating its decisions only when the decision made lies outside the judge's sense of the legitimate range of options accorded by broad constitutional language or grants of power. Where the Supreme Court has exceeded its constitutional authority, there is as much justification—no more, no less—for “striking down” its action as for striking down an act of the legislature exceeding its constitutional authority.

146. See supra at 86.

147. See supra at 86 n.142.

148. Justice Accused at 253-54. Antislavery advocates urged the Ohio Supreme Court in Ex Parte Bushnell unsuccessfully—to disregard the authority of Prigg v. Pennsylvania, Ableman v. Booth, and Dred Scott: “‘Your Honors, then, are not bound to follow the rule on which Prigg, or the Booth, or any other case was decided, if on careful examination and reflection, that rule is, in your judgment, wrong.’” The dissenters adopted essentially the position urged. Justice Accused at 255.

149. See Justice Accused, at 186-88.

150. Cover Review, supra note 2, at 1007.

151. Moreover, there are religious and moral arguments that favor an ethic of noncooperation over one of affirmative action in violation of law. The former ethic is almost always nonviolent, while the latter can tend to arrogance, pretentiousness, recklessness and various degrees of violence, such as discussed below. (Active judicial civil disobedience is especially prone to these failings.) These failings may be both morally significant in themselves and serve to undermine the integrity of the message of condemnation of evil and injustice. See generally Buzzard, L. and Campbell, P., Holy Disobedience 205–35 (1984)Google Scholar; Woodruff, , On Christians in Direct Action Protests (11, 1988)Google Scholar (unpublished manuscript on file with the author).

152. Cover, Violence and the Word, 95 Yale L.J. 1601 (1986)CrossRefGoogle Scholar.

153. Cover's language is appropriate to describe my point: “Here, however, I am not writing of the jurispathic quality of the office, but of its homicidal potential.” Cover, , Violence and the Word, 95 Yale L.J. at 1610Google Scholar.

154. The analogy is shocking, but, I think, sound. I do not wish to be misunderstood as advocating violence. Far from it. My point is rather to reveal the full implications and radicalism of judicial vigilantism of the sort urged by Cover. Obviously, aiding a fugitive, leading a slave revolt, and bombing an abortion facility each add elements of literal violence as well, that is, destroying the property of another and threatening the loss of life and limb. And each may be subject, to varying degrees, to moral objection on that score alone, depending on the weight assigned to the independent moral value of nonviolence (in the traditional sense of the word). But in terms of violence to the system of law, noninterpretivism can fairly be analogized to such acts of literal violence.

It is difficult to make a principled distinction between deliberate, bad faith judicial manipulation of law and an interpretive theory, held in good faith, that a priori assumes the validity of such judicial manipulation of law to achieve judges' subjective notions of justice. In terms of violence to the word, there is scant difference between the two. I do not mean, to impugn the integrity of those who subscribe to noninterpretive judicial activism. I argue only that the damage to. the rule of law accomplished by such judges is the same as if they were acting with the conscious intent to destroy law with which they disagree.

155. See Amar, Philadelphia Revisited, supra note 103, at 1046 n. 4.

156. The participation of Dietrich Bonhoeffer, a prominent German Christian theologian and pastor, in a plot to assassinate Adolf Hitler (for which Bonhoeffer was executed) is a famous example. See Stringfellow, W., An Ethic for Christians and Other Aliens in A Strange Land 131–33 (1973)Google Scholar.

157. See McPherson, J., Battle Cry of Freedom 202–13 (1988)Google Scholar; Oates, S., To Purge This Land With Blood: A Biography of John Brown (1970)Google Scholar.

158. Cover, , Violence and the Word, 95 Yale L.J. at 1605Google Scholar. On the right of revolution generally, see Justice Accused, at 105-16.

159. Cover Review, supra note 2, at 1007.

160. See Justice Accused at 209-12.

161. This is the classic apologia offered for Justice Joseph Story's seemingly pro-slavery opinion for the Supreme Court in Prigg v. Pennsylvania. 41 U.S. (16 Pet.) 539 (1842). For a new version of the argument, and a history of the debate over Story's opinion in Prigg, see Eisgruber, , Justice Story, Slavery, and the Natural Law Foundations of American Constitutionalism, 55 U. Chi. L. Rev. 273 (1988)CrossRefGoogle Scholar. See also Justice Accused, at 202-04 (discussing New Jersey's gradual abolition plan).

162. A parallel phenomenon occurred in the lates 1960s and early 1970s, with respect to civil disobedience bred of cynicism for a system that conscripted thousands for an unpopular and undeclared war, in apparent disregard for the Constitution and natural law. It was, of course, this situation that provoked Cover's outrage, as expressed in his 1968 review.

163. 109 S. Ct. 3040 (1989).

164. The Webster majority fractured badly on the key issues of whether Roe should be overruled and what, if anything, should replace it. The plurality opinion (Chief Justice Rehnquist, joined by Justices White and Kennedy) would repudiate the trimester framework of Roe, but not Roe itself, adopting instead a modified substantive due process test that would continue to recognize the “liberty interest” of the mother in the abortion decision (109 S. Ct. at 3056-58) but would more frequently find that interest outweighed by legislation that “permissibly furthers the State's interest in protecting potential human life” (id. at 3057), an interest that the plurality would recognize as being present, to some extent at least, throughout pregnancy. Id. at 3057. Thus, the plurality would appear to replace one substantive due process test with another, more deferential one, the exact parameters of which are unclear.

Justice O'Connor's opinion is even less clear. O'Connor's opinion strains to avoid any conflict with Roe, finding that, even under the trimester framework, Missouri's statute should be upheld. While O'Connor continues to consider the trimester framework of Roe “problematic” (109 S. Ct. at 3063), it is unclear whether she is willing to abandon it, even more unclear with what standard she would replace it, and highly doubtful whether she is prepared to repudiate the notion of substantive due process altogether. See id. at 3059 (stressing that nothing in the record suggested that the Missouri law would interfere with “a woman's decision to practice contraception” or “prohibit the performance of in vitro fertilization”). See also supra at 239, n.105.

Only Justice Scalia would have had done any with Roe altogether. See id. at 3064 (lamenting continuation of Court's “self-awarded sovereignty over a field where it has little proper business”). It thus appears that there is no present majority on the Court prepared to repudiate Roe entirely, nor a majority for any particular standard of review. The Court's decisions in this area are likely to continue to be ad hoc and narrow, with the Court retaining its “sovereignty” in the area, albeit a sovereignty more deferential to state legislation restricting abortion. But it is unclear how far this deference will extend. As a practical matter, litigation in this area is likely to continue for several years, into the 1990s and perhaps beyond.

165. The Boston Globe, March 31, 1989 p. 1 col. 1 (comprehensive national poll shows large majority (78%) of population opposes abortion in most circumstances, amounting to all but a tiny fraction of reasons cited by women having abortions, but 53% would allow abortion in those exceptional circumstances). Accord The New York Times, Dec. 1, 1987 (New York Times/CBS News poll showing similar results); Usa Today, January 2, 1990, p.1 col. 6 (Only 37% believe abortion should be left to a woman and her doctor. Large majority favors various degree of restrictions). Thus, while polls indicative of strong majority support for “freedom of choice” on abortion are not necessarily inaccurate, they can be misleading. The general concept of “choice” appears to command far more popular support than any of the specific choices that would be permitted under current law — e.g., abortion on demand, post- and near-viability abortions, abortions for sex selection, birth control, or spite. Only in the specific cases of rape, incest, or serious threat to the life of the mother does abortion have popular support. The major mass media, however, consistently misanalyze this data.

166. Interestingly, the spread of anti-slavery sentiment and the increasing political power of the free states produced a comparable surge in the intensity of advocacy by pro-slavery forces during the 1840s and 1850s. What had previously been argued by Southerners to be a regrettable but necessary evil began to be defended by increasingly aggressive Fire-eaters as a positive good and a natural right. Jaffa, H., Crisis of the House Divided: An Interpretation of the Issues in the Lincoln-Douglas Debates 50, 64–65 (3rd ed. 1982)Google Scholar. The recent rhetoric of pro-abortion groups may similarly reflect heightened intensity and extremism within the movement, rather than genuinely increased strength. What had previously been couched in terms of a “tragic and personal choice” that must be made by the woman, rather than the state, has become, in the words of a recent bumper sticker, “Abortion on Demand and Without Apology.”

167. See, e.g., In re: T.W., No. 74, 143 (Supreme Court of Florida, Oct. 5, 1989) (Lexis, States library, Fla. file).

168. Interstitial “ameliorative” approaches would be more readily available to judges in a system of federalism, however. Where state laws regulating or allowing abortion have extraterritorial effects, choice-of-law principles legitimately might enable judges to choose the “better,” pro-life rule as a means of implementing the natural law presumption in favor of life (and of avoiding the moral-formal dilemma). Constitutional questions of Full Faith and Credit would likely regain the prominence that Article IV issues had in slave cases.

169. See Galebach, A Human Life Statute, supra note 101 (arguing that Congress possesses the power to declare the rights of unborn persons under Fourteenth Amendment and to legislate to protect those rights).