Judges and Their Occupational Hazards

It was one of those threads running through the Platonic dialogues: Socrates would undo the facile arguments offered by a string of “interlocutors,” serving up maxims for the good and just life; and he would do it by showing that the maxim would reveal its emptiness as soon as it was connected to any case of moral substance. And so, very early in the Republic the question was posed as to whether justice inhered in always speaking the truth?

Socrates put the question: What if a friend, whom you knew to be deranged, asked you the whereabouts of a weapon? Others of us would ask: were the householders obliged to tell the truth to the Gestapo about the Jews they were hiding? The point was that not every instance of speaking falsely is unjustified and wrongful. A “lie” is an act of speaking falsely in order to defraud or to inflict an unwarranted harm. In short, if we can act upon a purported “principle” while doing wrongful things, that should alert us that we don’t have in hand a real moral “principle.”

The same kind of mistake is persistently made in the law: Phrases such as “freedom of speech” are taken to mark high principles, as though they were categorical in nature. But it’s been long recognized in the law – and in our common discourse – that speech may be used, along with any other part of our freedom, as a weapon to inflict wrongful harms: it may be the threatening phone calls, the extortionate letters, or the burning of crosses.

What brings me to all of this now is decision of the Supreme Court to hear an appeal this year in a case on abortion coming out of Texas, Whole Women Health v. Cole. The law requires that the surgeons performing abortions have admitting privileges at a local hospital. That was not only an added test of competence for the physician, but a guarantee of access for the patient to a full-scale hospital. The law further provided that each abortion clinic must have the same facilities as a surgical center.

The move to heighten the regulations was obviously animated in large part by the moral objection to the abortions themselves, and the desire to see these surgeries discouraged and reduced. Yet the claim was trumpeted for many years that abortion was safer than live births, a claim later shown to be quite false.

There should be no complaint then from the clinics that the law is now imposing on them the same regimen of inspections and rules it applies to other medical facilities, and even to some small businesses. But the hard fact was that these clinics could not readily meet those standards.

Socrates [National Academy of Athens, Greece]
Socrates [National Academy of Athens, Greece]

The plaintiffs contended that all abortion clinics in Texas could be closed down. The federal appellate court was not persuaded that was true. Still, the clinics in El Paso and Corpus Christi did have to close. Women near Corpus Christi would have to travel then about 235 miles to San Antonio in order to get an abortion. In Texas, that doesn’t strike people as a gargantuan drive, and yet that becomes the ground of the appeal: In making people travel further in this way, is the law imposing an “undue burden” on the freedom of a woman to order an abortion?

The phrase “undue burden” came from the case of Planned Parenthood v. Casey (1992). But the Supreme Court in that case insisted that it wasn’t an “undue burden” if the law simply made that right to abortion more difficult to exercise. Courts in Texas had accepted a distance of 150 miles as less than an “undue burden.” And it was pointed out that Casey “permitted even farther distances than 150 miles because it involved a 24–hour waiting period” and some women were required to drive for more than three hours.

But if we could step back for a moment, what would this discussion sound like if the question were connected here to the issue of moral substance: Would it be an “undue burden,” or an unwarranted hardship, if a person were required to travel 250 miles and more than three hours before he or she was given a license to destroy an innocent human life?

The question, cast in that form, could be readily understood, and quite as readily answered, by ordinary folk. But that mode of discourse is screened from the prose of the judges, weighing the issues, because the judges are working within the framework of the positive law: the positive law that proclaims a high “right to abortion” and screens the victim from view as a victim.

And so the judges in the lower court noted that “even assuming. . .that 150 miles is the relevant cut-off,” would there still be a “large fraction” of cases in which women are discouraged from having an abortion. But nothing in the notion of “a large fraction” or “150 miles” furnishes any moral or juridical principle.  Why are these judges, accomplished men and women, expending their genius in pondering matters of this kind?   They agonize over these phrases precisely because they are working under the positive law springing from Roe v. Wade.

But then the further melancholy result: If the judges are compelled to spend their days and lives writing in this way, can we not see how minds once cultivated are forced to start absorbing, as an occupational hazard, the idiocies of the positive law?

Hadley Arkes

Hadley Arkes

Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College. He is also Founder and Director of the Washington-based James Wilson Institute on Natural Rights and the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.

  • Manfred

    An excellent discussion, Dr. Arkes. No one forced these judges, at gunpoint, to be judges. Fr. William Smith+, the former professor of moral theology at St. Joseph’s seminary in N.Y., used to say: “It is better to be an honest mailman than a corrupt doctor.” (or judge)
    They have no sympathy from me.

    • RainingAgain

      To whom more is given more is expected.

  • Fr Kloster

    In this society many have become “experts” in word games, whining, and excuses. We continue to give more protections to animals than human beings. The barbarians are in charge of the means of communication and they have fashioned their new morality. They will defend their new elastic morality at all costs because they only rely on the sentient and not the concrete. It is a classic case of feelings over substance. But it is more dangerous than before because now basic taken for granted rights are only situationally granted.

  • Fr. Peter Morello, Ph.D.

    I am not convinced Dr Arkes that a wrongly adjudicated positive law Roe v Wade should not be given full justice within the context of legal opinion when those who are appointed to the Supreme Court are expected be just and not partisan. What is described by you as “idiocy” is actually a matter of judicial integrity in such cases. What is idiocy is Supreme Court Justice Kennedy’s argument in Casey “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and the mystery of human life.” This appeal to liberty in the Fourth Amendment [I’m sure you are familiar with all this] goes beyond the meaning of jurisprudence because it is bad philosophy and not jurisprudence. Nonetheless some of the best ethicists sit on High court benches. Justice Robert Beezer of the Ninth Circuit is one. He replied that Kennedy’s thought was “so broad and melodramatic as to seem almost comical in its rhetorical flourish.” But justices like Beezer decide on principle not flourish. You appear to be critical of strict adherence to principle and give the definition of a lie and the dilemma of the Nazis searching for Jews. Should we tell them the truth? Of course not. Because not everyone deserves the truth if it is to be used for deadly evil. However it is not the reality of a moral principle that is in question since the definition of a lie cancels itself out in such a circumstance. The apposition of the lie dilemma to the Supreme Court is a non sequitur. The integrity of jurisprudence in the Court will collapse if justices do not act as impartial judges regarding positive law. Truth as a principle in the end must speak to justice the opposite of injustice.

    • Ernest Miller

      However, adherence to a wrongly adjudicated positive law would have prevented Brown v Board of Education of Topeka (1954) from reversing Plessy v Ferguson (1896) regarding its “separate but equal” segregation policy. The core issue that Mr. Arkes makes–in my view– is not so much justice as it is the progressive idea of “judicial precedents” that stand in the way of truth, weaken truth, or modify truth.

      • Fr. Peter Morello, Ph.D.

        I agree Ernest and PCB there are excesses in both directions. The point I make is not excess as I point out in Kennedy’s nonsense but in the principle of retaining the integrity of the Court and we cannot do that by dismissing out of hand a judgment on burden that may be viable. At least it deserves a reasoned decision. That is the only principle I uphold in my response.

      • Fr. Peter Morello, Ph.D.

        That is an excellent point Ernest. I believe Roe v Wade for example should be overturned because it has no precedent and is not a privacy issue but denies the right to life of another human being. While that positive law is in effect however Justices who have judicial integrity should judge with integrity and not partiality. But the problem is justices on the Supreme Court cannot initiate changes to precedent. That must come from either the Congress or a plaintiff’s petition. Brown v Board of Education was litigation initiated and brought to the Supreme Court by a plaintiff named Brown.

      • NDaniels

        Regardless of Race/Ancestry, speciation occurs at conception, thus every son or daughter of a human person can only be in essence, a human person, a son or daughter, equal in Dignity, while being complementary as a male or female.

    • PCB

      Dear Fr. Morello, I think your “take-away” from this essay misses the point of Prof. Arkes argument; Another reading might be in order – However, I do agree, Justice Kennedy’s argument is more than comical; its a pathetic contrivance of judicial reasoning.

    • BTG

      Father Morello, It seems that in your “Nazi search for Jews” example you conflate “truth” with “an accurate representation of fact” I.e., presence of the person in the house. You are confused…the Gestapo has no right to an accurate disclosure by a person so as to enable them to commit murder. The fundamental “truth” undergirds the protection of innocent life. It seems that this is Professor Arkes essential point in his contrasting elemental natural law principles with a confused notion that applying the positive law is always sufficient.

      Put another way, would a crime of perjury be committed by such a speaker if the misrepresentation of fact be made to protect that person from the Nazis? A German judge applying the positive statutory law of perjury to convict the person uttering the misrepresentation would be committing a “injustice”.

      • Fr. Peter Morello, Ph.D.

        The moral principle I refer to is to speak the truth as opposed to lying. In this instance we have the right to refuse the truth based on the superior law of natural law which reflects eternal law. There we are in agreement. The person [gestapo] has no right to knowledge of where Jews are hidden. What you and Professor Arkes profess is the philosophy of positive law which has affinity with natural law and in some instances with logical positivism. However in strict legal terminology positive law without the embellishment of natural law philosophy speaks to enactments either by courts of law or judicial bodies that comprise strictly speaking standing law. Saint Thomas Aquinas used the term human law. Jurists later used the term positive law for precisely the same strict meaning. Here is where you and Dr Arkes blur the meaning of the legal terminology because in adding philosophical [natural law] standards of justice you already de facto not de jure are imposing your private moral viewpoint on standing positive laws. That is partiality clear and simple. The point I also make is that Dr Arkes calls positive law idiocy. Positive law the judicial agreement of standards of justice enacted through the judicial process belongs to the body of law know as the Common Law of England adapted as the judicial basis for most American States. Every jurist knows positive law is changeable because it is essentially human law. The error is to dismiss it as idiocy because without positive law understood in its strict legal interpretation not philosophy we do not have standing law and without that we do not have order and devolve into chaos.

  • Sheila

    Excellent article. In the past I usually “felt” compelled to always be honest. I never consciously thought about answering to an evil in another manner. I can bring to mind right now situations that arose where it could have been more hurtful toward others and possibly myself to have been completely honest. Your insight has given me much to consider. Thank you.

  • Hadley Arkes

    I write here because Fr. Morello didn’t quite understand me, but it may be my own fault, writing in the compressed space of a column.
    I have many friends among the federal judges, and I don’t mark it as a failing on their part that they are compelled now to start pondering such things as “driving more than 150 miles” or a “large fraction of cases”–questions that have no connection to any standard of moral import. I’ve made the point often in my writings that
    the signs we see on the roads, 65 [mph] or 35[mph] have no moral significance attaching to those numbers. But behind
    those numbers, as Kant would tell us, is a deeper principle, a principle of natural law, which tells us why we would be justified in restraining the freedom of people to drive at speeds that put innocent life at hazard. We then need a regulation, a positive law,
    that translates that principle into a practical measure for the terrain before us: 65 mph on the highway, 35 mph on this winding, country road.

    But with the cases on abortion, those notions of “driving more than 150 miles” connect to no valid underlying principle. They simply connect us to the fact that the law has sought to protect a right to destroy an innocent life. The law would fend off the efforts to subject that freedom to the kind of delay and reflection that could effectively discourage a person from exercising that freedom to kill. And thanks to the genius of the former Justice Sandra O’Connor, the attempts to cast up these gentle restraints on killing can be called an “undue burden.”

    My point was that judges who are compelled to spend their days wrapped in these lines are immersing themselves, every day, in a mode of writing that detaches them ever more from any genuine moral ground of jurisprudence. This is the kind of thing
    that, after a while, can corrode the mind. Even many of my friends among the judges are compelled to pick up these efforts to
    give precise meaning to an indefensible standard. But at certain times, with a wink and a finely turned phrase, the judge may convey to his thoughtful readers that he’s working with these formulas, even though he know that they are covering the killing of the
    innocent. The judge could even at times strike the pose of the Shakespearian actor: He could do an aside to his audience, explaining the scheme of villainy in which he is now obliged to play his part.

    • PCB

      Prof. Arkes, In my opinion, this essay expresses well what you have often argued here and elsewhere regarding the detrimental consequences of logical positivism on the American judicial and legal system of laws, as evidenced by such judicial theatrics and mental gymnastics in positivism, raised in the courts to the level of extreme sport, as you describe in this essay. A judiciary and legal system that now largely no longer accepts, or greatly discounts as nostalgic/unenlightened thought, the notion of natural law and of the existence of (universal)”first principles” of moral truths, and the role natural law played in the framing of the U.S. Constitution – as a result, most particularly in the case of legalized abortion, truths once held to be self-evident are now truths held to be self-serving, and the notion that all men are created equal has become reduced and rationalized to, some men are created equal while others (in the womb) are created equivocal.

    • Fr. Peter Morello, Ph.D.

      At the burial site of a person who was openly known as an abuser of drugs, women and other crimes I did that aside. Between closing prayers and final commendation I addressed the villainy. His wife was present in the crowd and if looks could have killed I would have been a dead man.

    • PCB

      it used to be law in Pittsburgh, Pennsylvania where I reside, for the man and woman to submit and pass a blood test prior to the issuing of marriage licenses – I surmise to ensure the lack of STD’s present in either party, as a matter of public health and safety. I do not know if this law is still in effect in Pennsylvania; Or if it has been ruled unconstitutional in the twenty-years since I married my wife. However, renewed legislation of this type might be one way for the states to exercise a measure of some control over marriage since Obergefell. I am sure it would be widely attacked as “undo burden” and a “violation of privacy”, but the argument can be made in the interest of public health. As an aside, I always understood “license” to suggest “privilege” vs. a “right”, (Intro. to Law 101), and therefore, the requirement of a marriage “license” always suggested to me that a legally-recognized marriage was a privilege of the state vs. a right, so I still do not quite understand why, in light of recent court decision, licensing of marriage hasn’t yet been challenged in favor of a “Recording” of marriage, much like deed transfers, incorporations, etc. I am not an attorney, so perhaps “license” and “recording/registering” are merely inter-changeable words for the same legal process which vary in usage depending on department and jurisdiction?

  • Manfred

    Some thoughts: It is reputed that 60 million fetuses, equal to 20% of the present U.S. population, have been legally aborted since Roe v. Wade. Prior to R v. W, aside from N.Y. and CA, abortion was a crime. The doctor went to prison.
    Suppose I were to tell you that 6 million of the 6 million murdered innocents were Jewish. Would that affect the public’s thinking? Suppose I stated that 20 million were Afro-American? Suppose I suggested the real reason for abortion was to get rid of America’s “useless eaters”?
    If I were then to ask what was the major difference between Americanism and Nazism, what would the answer be? The pre-natal innocents are murdered and their body parts sold in Americanism, while post-natal innocents were murdered in Nazism as abortion was too slow in effecting change.
    The American Government and the American church are both corrupt. No serious Catholic who feared for his salvation would serve either one.

    • gubllod

      You make excellent points here, Manfred. And every one of them is true. Planned Parenthood was deliberately set up by Margaret Sanger to give her room for her own immoral life and also to provide a vehicle for eugenics in which she was heavily involved. Htiler was involved in eugenics, too, and for the same reasons.

    • kathleen

      Please let us remember to call these pre-born children babies and not fetuses. Let’s be done with the liberal media- driven verbal engineering. When my daughter was pregnant we all rejoiced that she was going to have a baby. We didn’t call it a fetus. We are talking about human beings here, and yes, probably 60 million of them. May God have mercy on all of us.

      • Manfred

        Agreed!

  • TomD

    “Congress shall make no law . . .,” as the First Amendment begins, is not the expression of an absolute principle, it is a specific expression on a limitation on the power/authority of government.

    As for the freedom of speech example cited by the author, the Constitution recognized the ability of speech to be regulated at the state/local level as an act of self-government, as stipulated by the state constitutions. The judicial incorporation of elements of the First Amendment against the states, such as freedom of speech, and its elevation to “a higher principle,” distorted our Constitution and turned a specific and defined limitation on the power of the national government into a much more nebulous “higher principle,” where no absolute, judicially-enforced constitutional higher principle was expressed or intended, not even by the Fourteenth Amendment.

  • NDaniels

    “What brings me to all of this now is decision of the Supreme Court to hear an appeal this year in a case on abortion coming out of Texas, Whole Women Health v. Cole. The law requires that the surgeons performing abortions have admitting privileges at a local hospital. That was not only was an added test of competence for the physician, but a guarantee of access for the patient to a full-scale hospital. The law further provided that each abortion clinic must have the same facilities as a surgical center.”

    Surely the Law requires that a surgical center serves to sustain human life, not to destroy human life.

  • Fr. Peter Morello, Ph.D.

    Hadley Arkes article can be reduced to the issue of weighing a “gentle restraint” to save innocent lives against the concept of undue burden. The argument on the side of distance for treatment is assuring medical competency and better medical services. That underscores the issue of judicial integrity because the “gentle restraint” is a partisan approach to decision making. Without question if I as a priest were in the improbable position of sitting on the Supreme Court I would vote in favor of the “gentle restraint” to save innocent lived even if it betrayed a partisan rather than non partisan decision. However I am not. Neither would I if afforded the opportunity. The reason is I could not take the oath of impartiality in good conscience. And its the reason why clergy are exempt from jury duty. Now if the argument were centered on markedly better medical service and that were shown to outweigh burden a judge should vote for the better service. That is not fretting or idiocy it is good decision making. Nonetheless if a justice cannot make like judgments impartially he should not be on the bench.

    • bobster

      If I were a federal judge, I would never rule in favor of Roe v. Wade. My decisions would probably be overturned but I would be honoring my sworn duty to uphold the law as properly interpreted.