For the moral judge each day is a good day to live as well as--in the words of the Plains Indian warriors--"a good day to die." (1) That is to say, the judge embraces his professional life most fully when he is prepared to fight--and be criticized or reversed--in striving for justice.
In a democratic republic such as ours, the role of judges is severely circumscribed. They must apply the constitution and laws as adopted by the founders, legislature, and executive--with the interstitial play provided by our common law system. Some discretion to interpret and obtain a reasonable result is afforded. Even in a hierarchical judicial system that provides room for review and correction on appeal, any more unstructured freedom of judges to ignore or apply rules as their personal predilections suggested could lead to a chaotic, arbitrary, and unpredictable system of jurisprudence, impossible for citizens to comply with in their real worlds because they could not foresee when their conduct was in accord with society's not yet delineated demands. When judges can cut themselves free of the law's dictates, it is not a foregone conclusion that all will see fairness the same way. Some German judges were Nazis; some post-Brown judges were segregationists.
So, the conclusion is clear: judges must follow the law to avoid a kritarchy (2)--except, it is submitted, when that law requires the violation of the essence of mankind's sense of justice. The incongruity between the law and demands of a core right (call it natural justice if you will) must be absolutely clear if a judge is to rely on this fallback duty to the heart of fairness.
In this country, the crisis of conscience was reached most clearly in the contradiction between, on one side, Calhoun and Chief Justice Taney who predicated their views on the assumption that Negroes were inferior to whites and, on the other, Lincoln's and Jefferson's (in his better self) that the Declaration of Independence was decisive in holding that all men are created equal. (3) A subsidiary aspect of that great battle over "race," which dominates our history, was resolved fifty years ago when Brown v. Board of Education (4) overruled Plessy v. Ferguson. (5) The reverberations of that Brown struggle are still being played out. (6)
The judge must decide: does this law violate the essence of my duty to self and humanity. The process is gut wrenching. To society it is often confounding. The battle against fundamental injustice is now being waged in trial courtrooms in the confrontation between Federal Sentencing Guidelines (7) designed to punish by those afar without understanding the unnecessary cruelties that result when real human beings before the court are treated as cyphers rather than individuals. That struggle is not yet resolved, though unrelenting pressure by trial judges and others for rationality and justice may be having some effect. (8)
This Article discusses the exercise of judicial independence by judges who have opposed racism and other legally-sanctioned injustices, as well as judicial failures to oppose injustice. In illustrating the range of options available to judges faced with the prospect of enforcing unjust laws, only one is ruled out: silent acquiescence. In Germany, the Nazi judges' silence, compliance, and active participation in the gravest crimes against humanity serves as a reminder that the duty to decide cases in accordance with statutes, precedent, or regulations cannot be absolute. (9)
As Professor Maria Marcus's article Austria's Pre-War Brown v. Board of Education (10) shows, the Austrian Constitutional Court chose to nullify a 1931 Nazi-inspired effort to separate Jewish and Christian students in Universities rather than to adopt a readily available basis for refusing the case. (11) This judicial choice, made despite pressure and peril, warded off legally imposed university segregation until the Anschluss of Germany and Austria seven years later. …