Constitutional Conscience: The Moral Dimension of Judicial Decision

By H. Jefferson Powell | Go to book overview

3 A Question of Degree

The justices of the United States Supreme Court are not, of course, the only governmental officials who write opinions on questions of constitutional interpretation. In addition to the judges of state and other federal courts, lawyers in the elected branches of American government address constitutional issues in a variety of situations and at times through formal written documents that closely resemble in format and style judicial opinions. Lacking the insulation from direct political responsibility that the Constitution deliberately affords federal judges, political-branch lawyers are, it would seem, even more poorly positioned than the justices to play the constitutional-law game fairly. Evidence that they can, and sometimes do, would go far toward making it possible to imagine that we can ask more of the Supreme Court than a justice like Johanna or even Oliver and Marsha is willing to give us. A single example may not be evidence, but in this chapter we shall consider one that I believe is highly suggestive.

In the twenty-first century the attorney general of the United States is the chief administrator of one of the great departments of the federal executive branch. His or her time is taken up largely with the duties of supervising thousands of federal attorneys and other employees and with the responsibilities of a member of the president's cabinet. It was not always so. When the first constitutional Congress created the office in 1789, the attorney general had only two statutory duties: to represent the United States before the Supreme Court and to write opinions of law at the request of the president or other high executivebranch officers. These were, furthermore, personal responsibili-

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Constitutional Conscience: The Moral Dimension of Judicial Decision
Table of contents

Table of contents

  • Title Page iii
  • Contents vii
  • Preface ix
  • Introduction 1
  • 1: The Rule of Five 16
  • 2: Playing the Game 38
  • 3: A Question of Degree 56
  • 4: Men and Women of Goodwill 80
  • 5: Making It Up as We Go along 103
  • Conclusion: To Govern Ourselves in a Certain Manner 117
  • Notes 123
  • Index 145
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