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Law professor Geoffrey Stone takes aim at the way conservatives have framed the debate over the role of judges in our political system.

For 30 years, conservative commentators have persuaded the public that conservative judges apply the law, whereas liberal judges make up the law.

According to Stone, Chief Justice Roberts’s analogy of an umpire calling balls and strikes and Justice Scalia’s claim that conservative jurists merely apply the “original meaning” of the framers are “appealing but wholly disingenuous descriptions of what judges . . . actually do.”

I agree with Stone that judges are not the political umpires of the conservative imagination. They are regularly called upon to make important policy decisions without explicit guidance from the Constitution. Stone undermines his case, however, when he fails to articulate a coherent liberal jurisprudence, but instead focuses on cases with merely left-friendly outcomes.
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There’s a classic debate in philosophy of law about the status of immoral legal systems. The example typically used is Nazism and question is framed as follows. Do we say, as Lon Fuller famously argued, that “laws” passed by the German legislature in the 1930s cannot fairly be called “laws” by virtue of their flagrantly immoral nature? Or do we say, along with H. L. A. Hart, that Nazi law was in fact “law” (albeit bad law) insofar as it followed from a recognizably legal process?

In Law’s Empire, Ronald Dworkin argues (I think compellingly) that this debate is largely based on theories of law which overstate the role of semantic rules in legal interpretation. There is a widely-used sense of “law” in which Nazi law clearly qualifies. That is, we often use the term to refer simply to the product of legislative actions. Yet, when we speak of the “rule of law” and “respect for law”, we have in mind a loftier notion of justice that Nazi law lacked. In Dworkin’s words (p. 103-104):

We need not deny that the Nazi system was an example of law. . . . because there is an available sense in which it plainly was law. But we have no difficulty in understanding someone who does say that Nazi law was not really law, or was law in a degenerate sense, or was less than fully law. For he is not then using “law” in that sense… His judgment is now a special kind of political judgment for which his language, if the context makes this clear, is entirely appropriate.

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The recent news about Martin Grossman’s execution in Florida and the activism that surrounded it (e.g., here, here & here) struck a chord with me. There’s plenty to say about capital punishment, ethically, politically, religiously – and most of it has been said already.

One of the common cases made against capital punishment is that it is too-often enforced unequally along racial and socio-economic lines. In response to this, Ernest van den Haag, in his famous article, “In Defense of the Death Penalty” (sorry, can’t find the article online), argues that unequal justice is nevertheless justice, at least as applied to the individual being executed. The problem with unequal justice, though, isn’t that it’s unjust; it’s that it’s unequal.
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