Topic: Professions & Institutions

Judges, Morality, Duty and the Law
(3/13/2006)

The Scoreboard has already examined a couple of instances where professionals have refused to carry out their duties because of principled objections on moral grounds. Some pharmacists are refusing to fill birth- control prescriptions for unmarried women. A fertility doctor refused to follow through on an in vitro fertilization when he learned that his patient was a single lesbian. The Scoreboard regards both sets of conduct as unethical. The pharmacist has a duty to fill prescriptions for the entire public, and cannot only perform that duty for those who conform to his personal preferences, whether they are based on religion, personal conviction or just old fashioned bias. No doctor has to provide in vitro fertilization procedures, but if he does provide them, it is unethical to withhold the procedures from otherwise eligible women because the doctor objects to their choice of partners. Allowing doctors to discriminate endangers the public's access to medical care. The solution for pharmacists and doctors who can't abide performing their duties for certain types of people is simple: find another line of work.

Lately the plague of professionals applying personal moral judgements to the performance of professional duties has infected the courthouse. Some judges have recused themselves from judicial-bypass orders for minors seeking to have abortions. "Taking the life of an innocent human being is contrary to the moral order," said one recusing Tennessee trial court judge.  "I could not in good conscience make a finding that would allow the minor to proceed with the abortion." 

In other words, the judge disagreed with the law on moral grounds. The situation would not have to arise in an abortion controversy: should a judge who believes the death penalty is immoral recuse himself from sentencing a mass murderer in a state that permits capital punishment?

Judges do not make the law; that is not their job. They do not have to agree with laws, or believe they are right and fair. They only have to execute the laws. They can certainly apply their moral judgement within their execution of the laws…that's why they are called "judges." But serving as roadblocks to due process because they personally disagree with the state legislature's decision about what the law should be…no. A judge is not a "person" when he or she is wearing those imposing robes. Like other professionals, judges take on special powers, obligations, duties and values by virtue of their role in society. Individual persons can protest a law. Judges cannot. A judge who refuses to execute a law is no longer behaving as a judge, and if he can't behave as a judge, then he should stop being one.

The source of a judge's objection to a law makes no difference. It does not matter whether it is religious, moral, intellectual or arbitrary. The judge has no choice but to follow duly legislated laws in good faith. Any other conclusion leads to the breakdown of our system of justice, with judges over-ruling the public's elected representatives based on their own beliefs. Law exists in part to resolve difficult conflicts over right and wrong in a society, often in issues where there is great controversy. A society makes a decision, often a wrenching one. It is not up to the judge to undermine that decision; indeed, it is a judges duty to bolster it.

As always, there are special cases. At the Nuremberg war crime trials after World War II, former Nazi judges protested that they should not be punished for enforcing the Nazi government's genocidal laws. These judges, whose duties under the Nazi regime made them complicit in evil, had another course open to them…a difficult and courageous one. They could have refused to continue to participate; they could have ceased to be judges. Because such an act would have probably ended the German judges' lives, the Scoreboard questions the fairness of the Nuremberg tribunal's imposition of punishment on human beings who probably behaved exactly as its members would have done under similar circumstances. But the Tennessee judge who recused himself doesn't face that kind of dire dilemma. If he can't be a judge under all the laws, then he shouldn't be a judge at all.

Or, for that matter, a pharmacist.

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