Constitutional Conscience: The Moral Dimension of Judicial by H. Jefferson Powell

By H. Jefferson Powell

Whereas many fresh observers have accused American judges—especially excellent court docket justices—of being too pushed through politics and beliefs, others have argued that judges are justified in utilizing their positions to improve own perspectives. Advocating a distinct approach—one that eschews ideology yet nonetheless values own perspective—H. Jefferson Powell makes a compelling case for the centrality of person sense of right and wrong in constitutional selection making.            Powell argues that nearly each debatable determination has a couple of constitutionally defensible answer. In such instances, he is going directly to contend, the language and beliefs of the structure require judges to come to a decision in solid religion, workout what Powell calls the constitutional virtues: candor, highbrow honesty, humility in regards to the limits of constitutional adjudication, and willingness to confess that they don't have the entire solutions. Constitutional judgment of right and wrong concludes that the necessity for those traits in judges—as good as attorneys and citizens—is implicit in our constitutional practices, and that with no them judicial evaluation might forfeit either its personal integrity and the credibility of the courts themselves.       

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Yet that is what the usual policy/law dichotomy unavoidably implies. Justice Marsha believes that her approach, in contrast, is simple and persuasive common sense: the Court’s activities define what “doing constitutional law” is. )—in other words, that the majority did the job it meant to do poorly or unsuccessfully, not the familiar jeremiad, now revealed to be specious, that the majority justices were cheating because they weren’t even trying to do constitutional law. Justices who decide constitutional cases on the basis of their view of the best outcome in terms of justice (or whatever) are in no way cheating or usurping a role not theirs.

He sees judging as a means of feathering his nest. In constitutional cases, nothing that might be thought to be constitutional law matters to John in determining which outcome to work for: outcomes are for the highest bidder to determine. Constitutional assertions, reasoning and logic are tools for accomplishing the goal of delivering the Court’s decision in a given case, nothing more. )10 The strong Rule of Five is t he rule of fi v e N 21 n important to John because it sets the conditions of his business in vote selling, but it says nothing about constitutional law beyond showing the na•vetŽ of a political system that gives people like John such power.

Whatever the truth about Justice Holmes’s views generally, Judge Hand did not understand the “do justice” incident in this way. Discussing Holmes’s significance to the law, Hand wrote that Holmes “was to me the master craftsman certainly of our time; and he said: ‘I hate justice,’ which he didn’t quite mean. 5 It isn’t self-evident, to be sure, how Hand thought the anecdote explains why (or in what sense) Holmes wasn’t entirely serious about hating justice. But Hand’s take on an event that he and Holmes and perhaps a driver were alone in witnessing should give us pause before interpreting the story as clear support for the claim that Holmes was a legal positivist uninterested in the moral significance of his actions as a judge.

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