Robert Cover, a legal historian and constitutional law scholar, held the Chancellor Kent Professorship at Yale Law School. Before joining the Yale faculty in 1971, he taught at Columbia Law School and the Hebrew University in Jerusalem. He remained at Yale until his death in 1986 at the age of 42. In his best-known work, Justice Accused: Antislavery and the Judicial Process ( 1975), Cover used a series of controversies regarding the law of slavery in nineteenth-century United States as the means for reflecting on the question of whether judges are obligated to apply an existing law when they believe it is unjust or immoral. The excerpt is from the chapter titled "Some Paradigms of Judicial Rhetoric."
The rhetorical function of a judicial opinion ordinarily relates to the law and not to the judge. The opinion is designed to persuade the parties and the world that the decision arrived at is just, that the evidence has been weighed, that the rules of law have been justly applied, that the rules of law themselves have been fairly determined. However, occasionally one finds the judicial opinion used to suggest the immorality of the law. Very often this suggestion is coupled with a statement that the judge is, nevertheless, bound to apply the law, immoral as it may be. In such cases, and in the law of slavery they abound, it is useful to ask whether we are not dealing with a different rhetorical purpose: not the justification of the result and of the underlying principles, but the justification of the judge. The judge may be telling us: I know the result reached is morally indefensible and I wish primarily that you understand the sense in which I have been compelled to reach it.
Consider Joseph Story. In 1842 he had been the target of antislavery attacks for his decisions in two important fugitive cases: Prigg v. Pennsylvania and the Latimer affair. He wrote to a friend, "You know full well that I have ever been opposed to slavery. But I take my standard of duty as a judge from the Constitution." We have no problem recognizing the nature of this statement. It is part