BY ERIC ENGLE
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Judge Guido Calabresi, former Yale Law School dean and current YLS professor and Circuit Court Judge on the Second Circuit Court of Appeals in New Haven, delivered a lecture to HLS students on Sunday, April 5, entitled “What Does a Catholic Judge Do When the Law is Wrong?”
Calabresi’s first question was an unexpectedly religious one: “How can somebody of faith even be a judge,” given Jesus’s words in the seventh chapter of Matthew, “Judge not, lest ye be judged?” Calabresi answered by explaining that a judge, while required to play his or her part in protecting the broader society by convicting the guilty, must never render a personal judgment – must never, in his words, see a defendant as “scum.” For even the most guilty defendant may still have used his or her free will in committing the crime “slightly less wrongly” than he could have, and may consequently, in the end, “be saved” (go to Heaven), while the haughty judge “is lost” because of his “judgmentalism”. To illustrate his idea of “non-judgmentalism”, Calabresi presented the dilemma to the students: should a person harbor fugitives fleeing war regardless of their political views or even past actions? According to Calabresi, correctly resolving such moral dilemmas is the essence of judging.
Calabresi’s fundamental query was: How can one judge in a case where a law with which one disagrees seems to compel a judgment that one views as deeply immoral? Calabresi presented four possible responses, using the example of capital punishment:
1) The judge can recuse him-or-herself. Calabresi refuses to take that option, for he feels it would be like Pontius Pilate, a way to wash one’s own hands of the unfair outcome. He also justifies non-recusal because it would lead to an unbalanced bench on the particular issue.
2) One can rationalize, arguing in a results-oriented way from the desired result, twisting the law to reach that result. Calabresi referred to that as judicial nullification. While Calabresi supports jury nullification as a bar to tyranny, he expressed opposition to judicial nullification on similar grounds.
3) The judge can be simply an automaton, a robot, “la bouche de la loi” (“the mouth of the law”). Calabresi rejected that option too because this, in his view, represents a dehumanization of judges. Calabresi gave examples of judges who became automatons on issues such as the fugitive slave law and racial discrimination; these judges, in his view, were fallen giants who failed in their quest to reconcile their consciences with the law.
4) Calabresi argued that the judge facing an unfair law should hit the books – research the law, including its history, to be certain that the unfair law isn’t really just misconstrued. Calabresi told a story of research he did while clerking for Supreme Court Justice Hugo Black to argue that a faith in the ultimate justness of the law is often rewarded, if one simply looks long enough and thinks hard (and creatively) enough. This then is Calabresi’s answer: when the law looks bad, do not abandon your faith in it.
But what of the case when, after sleepless nights of attempting to find a path through the law to the just result, a judge has to admit defeat? Calabresi is unequivocal on this situation: his job requires him, in such a situation, to follow the law and bear the burden to his conscience in whatever way he can. That, says Calabresi, is part of the job of a judge, the particular “cross” that some judges will have to bear, and take responsibility for.
In the question and answer session that followed, queries focused on critical legal studies and natural law. Calabresi stated that he does not believe that law is indeterminate. Indeed, to apply Saint Augustine’s saying “lex mala, lex nulla” (“a bad law is no law”) would be an example of judicial nullification, according to Calabresi.
Calabresi was also pressed on his jurisprudential stance on abortion. Calabresi speculated on what the United States might have looked like if Roe v. Wade had acknowledged that life was being taken, but decided that the value of equality between the sexes required abortion anyways. In his view, such reasoning would have de-militarized the debate over abortion by recognizing that both sides had legitimate Constitutional claims.
Correction: The author for this piece was not correctly cited in our print edition.