Conservative bleg:

Have some pro-life people argued that, in light of the great evil of abortion, judges ought to bend the law (to the extent they can get away with) to pursue pro-life policies? Please be as specific as possible.

Little Loca (mail):
Yes. Scalia openly refuses to follow the law (i.e., Roe v. Wade) in his opinions.
7.25.2007 4:30pm
Sasha Volokh (mail) (www):
This is not a case of bending the law: He openly advocates changing the law by overruling Roe v. Wade, which is an approved method of judicial decisionmaking.

I'm talking about people saying "To the extent I can get away with this, I will implement not-X while pretending to apply the law that mandates X." I need not a case where people do this (one might argue that there are many such cases), but a case where someone actually argues that it is proper to do it.
7.25.2007 4:33pm
Sasha, would it count for a lower court to say, "I have no desire to do X because I think based on the facts and arguments presented I should rule not-X, but the execrable precedents of the court above me bind me to X"? I'm curious as to whether or not any of the district judges do that, or if circuit judges will do that with a majority opinion rather than just dissents.
7.25.2007 4:40pm
Paul Butler, When Judges Lie (and When They Should), 91 Minn. L. Rev. 1785, 1804 (2007):

The second example concerns Professor Michael Stokes Paulsen, who has described Roe v. Wade as a "lawless and immoral decision" that creates "the most atrocious injustice in American law since slavery." Paulsen explicitly disavows "subversion of the rule of law," but states that judges have a "moral imperative to resist Roe through every legitimate means." In hard cases, he advises judges to use natural law principles to defeat abortion rights. He states, "the frequent lack of clarity in the law makes possible 'ameliorist' incremental, temporary solutions at the margins of the moral-formal conflict: The judge may introduce his own sense of what 'ought to be' interstitially, where no 'hard' law yet exists."
7.25.2007 4:47pm
BTW, that article cites:

Michael Stokes Paulsen, Accusing Justice: Some Variations on the Themes of Robert M. Cover's Justice Accused, 7 J.L. &RELIGION 33, 45 (1989).
7.25.2007 4:50pm
Sasha Volokh (mail) (www):
Steve2: That doesn't count for my purposes, because at the end of the day the judge still follows what he sees as the law.

abcdefgh: Great find. Unfortunately for my search, this isn't good enough because Paulsen disavows subversion and advocates purely "legitimate" resistance.
7.25.2007 4:58pm
Little Loca (mail):
I don't think my comment was helpful, but I will point out that you have euphonized Scalia's position. Not only does he advocate that it be overruled (approved method of judicial decisionmaking), but he refuses to apply the law because he thinks it was wrongly decided (i.e., he dissents, instead of concurring "dubitante").

I realize that it has become acceptable (though one could argue that it shouldn't) for a justice to maintain his or her own views despite the fact that his or her view "lost" in a previous opinion.

In the recent resegregation case, Justice Kennedy refers to this "principle" saying: "If today's dissent said it was adhering to the views expressed in the separate opinions in Gratz and Grutter . . . that would be understandable, and likely within the tradition-to be invoked, in my view, in rare instances-that permits us to maintain our own positions in the face of stare decisis when fundamental points of doctrine are at stake. See, e.g., Federal Maritime Comm'n v. South Carolina Ports Authority, 535 U.S. 743, 770, 122 S.Ct. 1864, 152 L.Ed.2d 962 (2002) (STEVENS, J., dissenting)."
7.25.2007 5:10pm
Sasha Volokh (mail) (www):
Yes, the Federal Maritime Commission stuff is exactly what I'm thinking about: Some justices just refuse to sign on to a line of doctrine and keep dissenting forever. Charles Fried has a good article about the function of dissents in the November 2002 (I think) issue of the Harvard Law Review.

Anyway, I don't think stare decisis is required either morally or constitutionally; it's just a prudential doctrine. I don't think ill of any Supreme Court justice who refuses to sign on to cases of his own court (rather than cases of a higher court) that he thinks were so wrong they deserve no deference.

Anyway, all this is beside the point of my request, which is to find cases where people outright advocate subverting the law, that is, acting in a way that would be recognized as "against the rules" if they were open about what they were doing.
7.25.2007 5:44pm
Little Loca (mail):

(1) Is there a higher court?

(2) Does it have to be "his own court," meaning he was on the court at the time? That's what it seems to usually be, which seems to contravene the normal practice of treating the court as a contiguous, immortal body.

(3) whateverz
7.25.2007 5:52pm
Dave N (mail):
I think Justices of the Supreme Court, perhaps uniquely among the judiciary, should be allowed to state in dissent that they disagree with existing precedent and would overturn it if they could. Judges of inferior courts do have a duty to follow Supreme Court precedent, even if they disagree.

Though some would think this kind of dissent is a "conservative" phenomena,it is not. Both Justice Brennan and Justice Marshall regularly dissented in death penalty cases, adhering to their view that capital punishment was unconstitutional under all circumstances--even after the Supreme Court held otherwise.

So if Justice Scalia is to be condemned for continuing to dissent on abortion cases, then so too should Justices Brennan and Marshall for capital cases (and Justice Blackmun, who reached a similar conclusion toward the end of his Supreme Court tenure).

Criticize all or criticize none. But don't criticize merely because you ideologically disagree with the dissent.
7.25.2007 5:52pm
Christopher M (mail):
Richard Stith, Prof. of Law, Valparaiso:

"Jury nullification is thus a most convenient doctrine for a conscientious judge acting as jury to use to acquit nonviolent abortion clinic obstructors. I hope that it will be often so used."

See also United States v. Lynch, 952 F. Supp. 167 (S.D.N.Y. 1997) (stating that the court, as factfinder, would find defendants not guilty of violating an order not to impede access to abortion clinics even if all elements of the crime were proven, in an "exercise of the prerogative of leniency which a fact-finder has to refuse to convict a defendant, even if the circumstances would otherwise be sufficient to convict"). (I don't know whether it counts as "bend[ing] the law" under your query for a federal judge to refuse to convict on purely moral grounds when he claims a legal right to do so.)
7.25.2007 5:53pm
M. Lederman (mail):
Sasha: Don't know quite what you're trying to get at, but perhaps Judge Sprizzo's decision in US v. Lynch counts. Pam Karlan, in her recent piece in Georgetown, discusses that case in conjunction with Paulsen's argument.

Also, if you're not limiting yourself to judges but also including executive branch actors, Paulsen also wrote, in Law &Contemporary Problems in 1998, that he himself should have violated ethical duties and perhaps statutes by leaking word of Souter's impending nomination -- and thereby try to scuttle it, for abortion-related reasons -- when he was a lawyer at OLC.
7.25.2007 5:55pm
What about Paul Butler's "Racially Based Jury Nullification" argument? Butler, in essence, thinks black jurors should ignore concrete evidence against black defendants whom they regard to be otherwise nonviolent and potentially good fathers, upstanding members of their community, and so forth. If I recall, after Butler published the piece, some thought he should be disbarred for it. I think Butler, in this context, is advocating outright subversion.
7.25.2007 5:58pm
As argued before the SCOTUS, an obstetrical nurse testified before the Senate Judiciary Committee:

The doctor ''...delivered the baby's body and the arms, everything but the head. The doctor kept the head right inside the uterus. The baby's little fingers were clasping and unclasping, and his little feet were kicking.

''Then the doctor stuck the scissors in the back of his head and the baby's arms jerked out like a startle reaction, like a flinch, like a baby does when he thinks he is going to fall. The doctor opened up the scissors, stuck a high-powered suction tube into the opening, and sucked the baby's brains out. Now the baby went completely limp. He cut the umbilical cord and the placenta. He threw the baby in a pan, along with the placenta and the instruments he'd just used.''

Not being a lawyer and all, I guess I don't know what premeditated murder is.
7.25.2007 5:59pm
Have some pro-life people argued that, in light of the great evil of abortion, judges ought to bend the law (to the extent they can get away with) to pursue pro-life policies.....

"To the extent I can get away with this, I will implement not-X while pretending to apply the law that mandates X."

I have no idea what you mean by this question. What is bending the law to the extent they can get away with it? How do you distinguish a judge "pursung" a pro-life policy, as opposed to merely making a certain ruling? Are you admitting that if a judge, for instance, makes a ruling in favor of a terrorist, or an environmental group, or an abortion group, that they're in favor of those policies? If not, how do you distinguish them from a ruling in favor of a pro-life group?

Are you looking for a judge who OPENLY ADMITS to "pretending" to apply the law? I don't know if you'll find any luck with that.
7.25.2007 6:01pm
Little Loca: Last time I checked there is only one law, the uS Constitution. Precedents are not law.
7.25.2007 6:05pm
Sasha Volokh (mail) (www):
Daniel950: Yes, I doubt that any judge will admit to doing this. And you can't infer that they're doing it just because they rule that way (since they'll always give some legal-sounding reason). I'm primarily looking for non-judges (or judges outside of their written opinions) arguing that judges should be doing it.
7.25.2007 6:17pm
Sasha Volokh (mail) (www):
M. Lederman: Both of those look great. (McConnell wrote about Sprizzo's decision in First Things also, criticizing Sprizzo, but just barely.) Thanks!
7.25.2007 6:21pm
I'm primarily looking for non-judges (or judges outside of their written opinions) arguing that judges should be doing it.

The law right now is that marriage is between a man and a woman. There's plenty of instances of judges arguing that that law should be subverted, even while they're on the bench. I believe you should expand your search if you're looking for judges who pretend to uphold law X (marriage) while simultaneously holding not-X (so-called homosexual "marriage").

In other words, you need to expand your search. Only an idiot pro-life activist would pretend that Roe is worth upholding or respect. It's one thing to argue about what an "undue burden" is, and to tell judges that things they're finding as undue burdens aren't really undue burdens and that such a finding would be consistent with Roe. But it's another thing entirely for a pro-life activist to tell a judge that they should do the pro-lifers a favor and whittle away at Roe while pretending to uphold it.

Hmmm... now that I think about it. The "whittling away" strategy would apply to a lot of things. Why limit yourself to pro-lifers?
7.25.2007 6:30pm
jonah gelbach:

How about In re Jane Doe, 19 S.W.3d 346, 367 (Tex. 2000), which is the (in?)famous case in which Texas SC Justice Patricia Owen wrote in dissent that a minor seeking judicial override of parental notification requirements

should also indicate to the court that she is aware of and has considered that there are philosophic, social, moral, and religious arguments that can be brought to bear when considering abortion.

This case is the one in which then-Texas SC Justice Alberto Gonzales wrote in concurrence that

[T]o construe the Parental Notification Act so narrowly as to eliminate bypasses, or to create hurdles that simply are not to be found in the words of the statute, would be an unconscionable act of judicial activism.

There seems to be some controversy concerning whether Owen's position (not just in the sentence above but in her dissent more generally) boils down to the sort of activism suggested by Gonzales, or simply her reading of the statutory purpose of the PNA. For instance, see this position paper by PFAW and this position paper by Boyden Gray.

I haven't read Gray's whole thing, but what I did read suggests that his objective is to claim that Owen's dissent was not "activism" (whatever that means, anyway). That said, there might be examples of other conservatives saying "right on" to her position on "activism" grounds.

This comes to mind because the 2003 hearings regarding Owen's nomination to the 5th circuit were rather acrimonious. And, if I remember correctly, Owen's was one of the nominations that led to the confrontation a couple years ago regarding Democrats' use of the filibuster (remember the days when the Republicans opposed the filibuster?). So, there is no doubt plenty of blogcopy out there on this topic.
7.25.2007 7:33pm
Little Loca (mail):
David N:

I supported my point by reference to Kennedy quoting Stevens. I can hardly be said to have been criticizing only Scalia, or even doing so because he is "convervative."
7.25.2007 9:23pm
Pierre A:


This is a recent case where the author advocates outright civil disobediance by federal judges in applying federal sentencing laws. This calls for refusing to apply the law rather than bending the law, so this may not be helpful.
7.26.2007 2:47pm
Eric Rasmusen (mail) (www):
Let's think how such subversion would show up. How can a judge stop an abortion? It isn't like liberals subverting the death penalty, where a judge can intervene to slow down or reverse a judicial penalty. We should look instead to trials of people who have blocked access to abortion clinics or who have bombed them.

It is surprising how passive anti-abortion activists actually are. If abortion is murder, then an abortion clinic is very like a Nazi death camp. Would we think badly of a German judge who obstructed the conviction of someone who bombed a death camp or helped a Jew escape?
7.26.2007 5:08pm
Dilan Esper (mail) (www):
I'm not a fan of the position of Brennan, Marshall, Scalia, and Thomas that you keep on dissenting when you don't agree with the majority's decision. I understand that they ahve the right to do it, but there are good reasons not to do it:

1. It screws up doctrine. E.g., because Scalia believes that Miranda is unconstitutional, he refuses to participate in the enterprise of making the doctrine coherent and workable.

2. It's intemperate. There's a flavor of "sore loser" to it; the Justice didn't like the decision, so he sticks out his tongue and won't follow it.

3. It's unnecessary. One can do a short concurrence where one reiterates one's views, refers to the prior dissent, and hopes that the Court one day adopts the Justice's views. If the Justice uses this approach, the Justice continues to register his objection while not refusing to participate in the development of the law.
7.27.2007 8:36pm