Are judges free from the fetters described in Chapter 1? We like to think so. Law school teaches a vision of the common law as evolving toward ever-higher reaches of wisdom and flexibility. We have even higher hopes for our public, constitutional jurisprudence. Despite lofty ambitions of justice, however, our system of law has yielded many embarrassingly inhumane decisions. 1 Opinions steeped in what we later see as serious moral error come down all too frequently--at least one per generation. Every casebook has chapters devoted to doctrines or precedents that we are glad to relegate to history. And anyone who reads legal biography knows that even the most eminent Justices--Taney, Holmes, Field, Marshall--have chapters that mar their otherwise outstanding careers.
The concept of "serious moral error" is, of course, impossible to define and perhaps ultimately incoherent. We use the term in three limited senses. A decision embraces serious moral error if (1) it proceeds blithely ignorant of moral complexity; (2) it is broadly or universally condemned by subsequent generations, somewhat akin to being overruled; and (3) its assumptions, for example, about women, are roundly refuted by later experiences. Judges will always hand down decisions that will seem offensive to some. We reserve the term "serious moral error" for those shocking cases that virtually everyone later condemns.
One obvious explanation for these mistakes is judicial inability to identify--imaginatively--with the person whose fate is being decided. Because of the particularized stock of life experiences and understandings judges bring to the bench, these notorious opinions seemed to their authors unexceptionable, natural, "the truth." Only hindsight, benefited by increased empathy and understanding, exposes an opinion as monstrous, anomalous--a moral abomination. We do not view the mistake as merely technical (e.g., failing to reflect carefully on precedent), or as one of prudence (e.g., deciding a case on broader grounds than necessary). Rather, we condemn the judge for a failure of sympathy or nerve.
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Publication information: Book title: Failed Revolutions:Social Reform and the Limits of Legal Imagination. Contributors: Richard Delgado - Author, Jean Stefancic - Author. Publisher: Westview Press. Place of publication: Boulder, CO. Publication year: 1994. Page number: 23.