President Obama certainly has a right to put a liberal on the Supreme Court because liberal political tastes can be perfectly consistent with an appropriate fidelity to upholding the rule of law. But there are moral beliefs that many liberals possess today that largely conflict with upholding the rule of law.
As a result, nominee Elena Kagan’s personal moral beliefs are quite relevant to judging her fitness to serve on the Supreme Court.
Two branches of moral philosophy
Moral philosophers divide theories of morality between those that are consequentialist and those that are nonconsequentialist in nature.
Consequentialist theories of morality contend that moral propriety is determined by the consequences of actions, not the actions themselves.
Stealing, for example, is therefore deemed wrong because it harms the victim, not because it is inherently wrong to take something that belongs to someone else. For many consequentialists, justice is therefore a matter of how fair the final outcome is, not whether the process by which it was arrived at was fair. So if the final outcome of a rule, law, or policy is unequal, a consequentialist might view it as unjust on that basis alone.
A nonconsequentialist approach, however, holds that morality is rooted in principles that must be followed, even if the outcome is made less desirable by doing so. Cheating on one’s income taxes, for example, is deemed wrong even if no human is actually harmed and the money saved is given to the poor, because cheating is inherently wrong.
With respect to the law, an outcome is just if the relevant rules were followed (due process was observed); it has nothing to do with how fair or equitable the outcome is. Under nonconsequentialism, the existence of unequal outcomes is therefore not by itself viewed as unjust.
How Kagan thinks could have a big impact on your life
This is a timely issue. If confirmed, Ms. Kagan may hear a constitutional challenge to the mandatory insurance requirement of the new health-care law.
A nonconsequentialist judge would examine whether the Constitution empowers the federal government to require citizens to purchase a private good (health insurance) and make a ruling on that basis alone.
But a consequentialist judge would look beyond the law and consider the insurance mandate’s impact on society. Using this criterion, the consequentialist judge might see the mandate as a “benefit to public health” and a “compelling state interest.” Such thinking would lead to a loose interpretation of the Commerce Clause and an affirmation of an unprecedented loss of personal liberty in America.
The nature of the rule of law
Given their emphasis on following rules, nonconsequentialist theories of moral propriety comport with upholding the rule of law since laws are, at their core, rules.
There is more to the rule of law than believing that no one is above the law. Even if no favoritism is associated with how law is applied, if legal decisions are guided by consequentialist rather than nonconsequentialist moral reasoning, we still end up with a society that is ruled by men and not laws.
America is the world’s best example of a free society in large part because for the first 160 years after the signing of the Declaration of Independence, nonconsequentialist moral reasoning dominated American legal ethics.
But consequentialist moral reasoning has been gaining legitimacy since the 1930s and it began to heavily influence legal ethics after the publication of John Rawls’s “A Theory of Justice” in 1971. Rawls’s framework was widely thought to provide a rigorous justification for claims that had been made by earlier contributors to the social justice movement. (It should be noted, however, that Rawls’s framework also has important nonconsequentialist elements.)
Modern social justice theory explicitly calls into question the view that justice is solely a matter of equal treatment under the law, pejoratively dismissing the idea as mere “procedural justice.”
At the same time, an unequal outcome has increasingly come to be viewed as clear evidence of injustice and therefore changing such an outcome to a fairer one has come to be viewed as a legitimate way of effectuating justice. Many judges now view using their power to advance social justice as an important part of their job. This would have been unthinkable in America before the 1930s.
Do we really want the law of the land to be determined by a few judges? The proper place for consequentialist moral reasoning in American public life is in public debate and at the ballot box, not in a court of law.
Social justice – but not from the bench
The Constitution provides a mechanism for using government power to advance social justice if that is what the citizens want. That mechanism is passing new laws in the legislature. It is therefore unnecessary for judges to advance social justice by changing the law from the bench if such changes are what the citizens actually want.
If judges refuse to apply the law because they don’t like the law, they are simply circumventing the mechanism the law provides for changing the law. That is inconsistent with the rule of law and is also inconsistent with governing with the consent of the governed.
What if a judge isn’t trying to change the law but simply does not want to apply it in a particular case because he or she disapproves of the outcome that will result from doing so? This is also inconsistent with the rule of law because judges can reach very different conclusions about when and to what extent to ignore the law in an effort to effectuate a fairer outcome in a given situation. This means that the de facto laws we live under will vary by judge, which is inconsistent with the rule of law.
Someone on the Senate Judiciary committee should ask Kagan if she believes it is possible for a Supreme Court justice to make decisions that comport with social justice theory while upholding the rule of law at the same time. Her answer would be revealing. It could even serve as a “teaching moment” that begins reversing a dangerous trend in American legal education.
David C. Rose is a professor of economics at the University of Missouri-St. Louis.