The Judicial Virtues

Joel Alicea (00:01):
Welcome. We’ll begin as we always do. In the name of the Father and of the Son of the Holy Spirit. Amen. Hail Mary, full of grace. The Lord is with thee. Blessed art thou among women, and blessed is the fruit of thy womb, Jesus. Holy Mary, Mother of God, pray for us sinners, now and at the hour of our death. Amen. In the name of the Father and of the Son and of the Holy Spirit. Amen.

Well, thank you for coming to this event on the judicial virtues. I’m Joel Alicea. I’m an assistant professor of law here at the Catholic University of America’s Columbus School of Law and the co-director of the project on constitutional originalism and the Catholic Intellectual Tradition, CIT for short. We explore the relationship between the Catholic intellectual tradition and American constitutionalism more generally. And I think that that mission aligns very well with the topic of today’s discussion, the judicial virtues.

We are very grateful for the co-sponsorship of the Institute for Human Ecology and the Center for the Study of Statesmanship, both here at CUA for their support for this event. Grateful for that. I’m going to introduce Professor Solum first, and after his remarks I’ll then introduce Professor Greene before his remarks. I’ll facilitate a conversation between them and then open it up for Q&A from the general audience.

So first, Professor Larry Solum is the William L. Matheson and Robert M. Morgenthau Distinguished Professor of Law as well as the Douglas D. Drysdale Research Professor of Law at the University of Virginia School of Law. His scholarship focuses on constitutional theory, especially originalist theory, procedure and philosophy of law. And his work has been published in places like the Harvard Law Review, the University of Chicago Law Review and the Virginia Law Review. His scholarship is particularly relevant to this topic because he has published extensively in virtue ethics and its application to law and judging.

Prior to joining UVA, Professor Solum was a member of the faculty at the Georgetown University Law Center, the University of Illinois, the University of San Diego, and Loyola Marymount University. And he has visited at Boston University and the University of Southern California. Professor Solum practiced law at Cravath, Swaine & Moore clerked for Judge William A. Norris on the US Court of Appeals for the Ninth Circuit. He received his law degree from Harvard Law School and his undergraduate degree from the University of California at Los Angeles. So Professor Solum.

Larry Solum (02:24):
Thank you Joel. Thanks so much for coming. It’s a pleasure to be here. My first time speaking or doing anything really at Catholic, so it’s a real pleasure. I’m going to be talking about the judicial virtues and I want to start with Aristotle. So Aristotle’s moral philosophy has many starting points, but one of those is the idea of eudaemonia or human flourishing, faring well and doing well. Aristotle thought that eudaemonia, that flourishing was the highest humanly achievable good. And he thought that to understand what flourishing was for humans, we needed to have an understanding of human nature. And Aristotle believed that humans were social and rational creatures. So what is it to live a flourishing human life? It is to live a life that involves social and rational activities, which could be of many kinds.

And living a flourishing life requires that we have the material prerequisites for flourishing. So we need to have the things like peace and prosperity that enable us to good lives. But for Aristotle, it was key that humans possess the kinds of excellences or virtues that are appropriate to humans. And he divided these virtues into two categories, although maybe there were three categories, we’ll get to that in a minute. The moral virtues. So the moral virtues for Aristotle are dispositional states in relationship to morally neutral emotions. One of these virtues is courage. Courage relates to an emotion, fear. And Aristotle thought that there was a vice of excess. We call this an anger management problem, but there’s also a vice of deficiency. The vice of deficiency in is the failure to respond with appropriate anger when injustice is done because anger is the moral emotion that responds to injustice.

And likewise, there are other virtues. I’m sorry, I was talking about fear and I switched to anger. You’ll excuse me. Aristotle thought that courage and good temper and other such traits where human virtues, we needed these virtues to flourish. And then he believed that there were intellectual virtues. And two of these are Sophia or theoretical wisdom and phronesis or practical wisdom. So theoretical wisdom, we’re familiar with this in law, because we have to understand complicated stuff. And phronesis or practical wisdom is a little more complex. So Aristotle’s idea, practical wisdom can be understood on the model of a perceptual capacity. It’s like an ability to see what is morally salient and to recognize the possibilities that are practical. So a virtuous human has all of those characteristics and another virtue as well, and that virtue is justice. And justice is really, really something that philosophers have struggled to understand.

But I think that there’s a very good account of Aristotle on the virtue of justice, on offer in Aristotle himself, in the Nicomachean Ethics, and in the work of a moral philosopher who does Aristotle, Richard Crowd. And here is the idea, the virtue of justice is not a virtue that says form your own beliefs about how things ought to be and then act in accord with those beliefs. That’s a possible understanding of the virtue of justice, but that’s not how Aristotle saw it. Aristotle thought that there was an internal connection between the virtue of justice and the idea of lawfulness. Only for Aristotle lawfulness was a slightly different concept than would be suggested by modern thinking about lawfulness, though the Greek word nomos that is translated as law had a more capacious meaning than law in the positive law sense that prevails in American legal culture.

So for Aristotle, the nomoi were inclusive of social norms and customs that are widely shared in a particular community and deeply held. So to be lawful, meant to internalize the social norms of your community, the customs of your community, they became yours. And so you become a lawful human, a human who is able to interact with others in a way that is connected to the social norms that govern human interaction in your community. To be just is to be lawful. But that’s not the end of the matter. Aristotle believed that there was an aspect of justice that was connected in a deep way to the idea of phronesis, of practical wisdom. And this idea, epieikeia in Greek is translated as equity. So a fully virtuous human is not just lawful, they also have the ability to understand the ways in which the particularity of human experience, the infinite variety of human life cannot be fully captured in any system of rules.

But in order to do that, you’ve got to be able to pick out what the purpose of a rule is and to understand particular facts situations as we would say it in law and how they relate to those purposes. So those are Aristotle’s virtues. Aristotle thought that a life of human flourishing was a life in which you would be able to pursue social and rational activities that express the human excellences. Okay, now what does all this have to do with judging? What are the judicial virtues?

I want to just begin with what we might call a thin theory of the judicial virtues. These are the virtues that we can all agree a good judge needs. A good judge has to have what Aristotle calls the moral virtues. If a judge is a coward, if he or she can be intimidated, then that will undermine their ability to be a reliably good judge. If a judge has an anger management problem, that’s going to be a difficulty for the courtroom, won’t be able to be a good judge. If a judge lacks theoretical wisdom, if a judge can’t understand the law, then you can’t be a good judge. And so we can all agree that these characteristics that Aristotle thought were the virtues of all humans are also virtues for judges.

But the virtues of phronesis, practical wisdom and the virtue of justice are obviously particularly important for judges. So to be an excellent judge, you need to be lawful. And so this means that you need to have internalized the nomoi, you need to have internalized the social norms that characterize your community. And you need to be practically wise, it’s not enough to be theoretically wise, and we all know this. I think the people in the front of the room, Joelle and Jabal, and I know that it’s not enough to understand the law intellectually, that even the most sophisticated intellect can just get the law badly wrong because they don’t really understand its purposes, they don’t understand how to make it work under real conditions. So a really excellent judge needs to be practically wise and lawful. Now I just want to then say that we need to understand that a virtue theoretical account of good judging gives us a handle on two dangers for judges.

So here’s the first danger. Judges who lack the virtue of lawfulness can become tyrants. They can impose their own will, that is their own view of what the law ought to be on their fellows. And that’s a problem. Judges who are tyrants, who view the law as the instrument to achieve their own vision of how society should be, that’s very problematic. But there’s another danger for judges. One might put it this way, you could be too lawful. That is, you can fail to appreciate that laws have purposes and that to understand how to apply the law requires practical wisdom. It requires that you appreciate the purpose of the rules and that you recognize the situations where although the literal meaning of the rule would cover the situation, the purpose does not. That is you need the corrective to justice this lawfulness, which is equity.

So a fully virtuous judge, a judge with all the virtues, with the moral and intellectual virtues, provides us with the standard, the measuring stick for how the law should go. And that is characteristic of virtue ethics. That virtue ethics makes the phronimos, the fully virtuous human with all of the virtues, including this crucial virtue of practical wisdom, the measuring stick, the standard by which we judge human conduct. And likewise, a virtue theoretical approach to the law makes the virtuous judge, the fully virtuous judge, the standard for legal correctness. And I’m going to just stop there and I’m really looking forward to Jamal’s remarks.

Joel Alicea (17:55):
Thank you Professor Solum. Jamal Greene is the Dwight Professor of Law at Columbia Law School. His scholarship focuses on constitutional law, especially the structure of legal and constitutional argument. And his work has appeared in places like Harvard Law Review, Yale Law Journal, and Columbia Law Review. And he very recently published a book, How Rights Went Wrong: Why Our Obsession With Rights is Tearing America Apart. As relevant to this event, I would especially commend to you his article, Pathetic Argument in Constitutional Law published in the Columbia Law Review, which focuses in part on the interaction of emotion, legal argument, and I think has real implications for virtue ethics as well.

Prior to joining Columbia, Professor Greene was the Alexander Fellow at New York University School of Law. He’s been a visiting professor at Harvard Law School and served as Columbia Law’s Vice Dean for intellectual life. He served as a law clerk to Justice John Paul Stevens on the US Supreme Court and to Judge Guido Calabresi on the US Court of Appeals for the 2nd Circuit. He received his law degree from Yale Law School, his undergraduate degree from Harvard. So Professor Greene.

Jamal Greene (19:09):
Thank you. It’s really nice to be here. It’s nice to be invited. This is the first time I’ve been at this university or at this law school, so it was a welcome invitation for me. I’m going to start by just making a couple of points because I’m actually interested in the questions and interested in your questions as well. The first point, I’ll just start with, and I’m going to sit, I’m not quite as dynamic as my colleague. The first point I’ll make is just that I don’t think of myself as, and I’m not an expert in virtue ethics. I’m not a legal philosopher, I am not an expert on Aristotle or an expert on Catholic intellectual thought, but I am trained as a lawyer and so I’ll talk about things anyway as if I have expertise. That’s what we are trained to do.

But the second point I’ll make is that we are, I think in a moment in our country and especially the constitutional law, but I’ll broaden it to saying the public law of our country, where I think judicial virtue is a ripe topic for discussion, not least because the courts and the Supreme Court in particular find themselves facing a legitimacy crisis.

And I say that with due respect to Justice Alito who has pushed back on that characterization regardless of whether one thinks the characterization is justified as a social fact, it is the case. And it is born out of a perception that the courts and the Supreme Court in particular is the subject of a certain kind of partisan capture, at least when it decides certain kinds of public law cases and constitutional law cases in particular. Now obviously partisanship in the political partisanship sense is not a judicial virtue and I don’t think one needs to belabor that for very long. But I think it is worth asking, and of course people disagree about the degree to that what we’re seeing. But I think it’s worth asking whether there may be less obvious virtues or vices that are especially important in the US constitutional context and especially important in this moment in US constitutional law.

And I think I want to suggest, and I’m not sure how I feel about this, but I think I want to suggest that what counts as a virtuous judge in constitutional law, and here I mean US constitutional law in particular might not be quite the same as what counts as a virtuous judge in other legal contexts, let’s say private law or the decision about who owns Blackacre for example. And I want to ultimately say that, or at least the virtue I want to focus on ultimately is the virtue of humility and its associated vice of self certainty, which I think maybe may play out somewhat differently in the constitutional context than in other contexts. To get there, I want to start with three propositions about constitutional judging in the United States. And one I’ll spend a little bit more time on than others because one of them I think is less familiar and is less commonly discussed than others, and so that’s the first proposition.

So the first proposition I want to suggest is that there are serious questions of legitimacy and authority around the original design and the formal amendments of the US Constitution. We often speak of the constitution, both in court and out of court as if it represents in its original design and in its significant amendments, a set of powerful commitments that reflect the will of the American people, of we the people. And that is why we must constrain modern politics by those commitments because they are the deep commitments that we have made as a people. The problem is that that’s not true, that’s not defensible, at least as applied to the original Constitution. The Constitution was not drafted by majority of the American people or ratified by people representing them. It was drafted by people who did not permit women to participate in electoral politics and at times practiced human slavery and who by and large conditioned the vote on freehold on owning property.

The Constitution was of course ratified in a very close vote by bodies whose members were selected under similarly discriminatory conditions. To say that a document that such openly exclusionary bodies drafted and ratified represents ipso facto the will of the people is not just wrong, but is frankly offensive. Now of course the Constitution has changed since 1787 in lots of ways, but as to the significant provisions drafted after 1787, there are similar problems. The 14th Amendment, which is considered by many to be the grand corrective of the original Constitution, was drafted by a Congress of exclusively white men. Women again, could not participate in electoral politics, and in most states at the time, including in the north and the west of the country, Blacks could not participate in politics on equal terms with whites.

Now it may well be that the language of the 14th Amendment and the language of original constitutional provisions represented a genuine commitment of we the people in some sense, but the process through which that language made it into the Constitution can’t give us very much confidence that that’s right. We just don’t know. And I recount this history, should be well known, not to take shots at the framers, many of whom had attitudes about Republicanism that were ahead of their time. But I recount this history to suggest that the reverence that we as Americans owe the Constitution today can’t rest on its status as an exercise of popular sovereignty, at least not as originally designed. It was not such an exercise unless we think that those acts of mass exclusion were justified. And as you can imagine for someone who looks like me, the claim that the Constitution represents some high democratic commitment is especially alienating.

So the question becomes what do we do about the fact or how do we posture ourselves towards the fact that the Constitution was drafted and supported by a distinct minority of the population, that distinct minority then put in the amendment rules that prevent even motivated majority from changing the Constitution. And so given that the authority and legitimacy of the Constitution as written, if such authority and legitimacy in fact exist. It’s something that has to be actively argued and defended. It can’t be simply assumed, the process through which it was drafted and ratified don’t permit that assumption.

And the substance of that defense, the substance of the defense of the authority and legitimacy of the Constitution as written is not obvious. The key point then is that constitutional law debates in the United States, they’re not debates by and large between those who honor the deep commitments of the American people embodied in the Constitution versus those who don’t honor those deep commitments. They’re by and large are debates about what the deep commitments of the American people actually are. They’re debates about who or what actually speaks for America.

And this is a hard question and it’s a hard question because genuine, actual, diverse majorities of Americans have never codified the answer to the question, at least not constitutionally codified, the answer to the question of what their deep commitments are. It doesn’t mean that we don’t have any deep commitments as a people, but it does mean that we the people have never actually written them down in a constitution. That’s proposition number one, which is that the legitimate materials of constitutional law, which include our deep commitments, they don’t just include the written constitution, but also unwritten elements of our legal tradition are themselves ambiguous. These are ambiguous legal materials.

The second proposition is a familiar point, a more familiar point I think, which is that even if the legitimate materials of constitutional law were clear, as in we know what they are, many of the standards that we spend a lot of time arguing about in constitutional law do not give a clear instructions. As Chief Justice Marshall said in McCulloch v Maryland the Constitution lacks the publicity of a legal code. It is not written as many modern constitutions are, some anyway, it’s not written with great specificity about precisely what rights people have and what rights they don’t have. Again, this is not a general feature of constitutions, even though Marshall seemed to suggest that it was. But it is a feature of our constitution, which is depending on how one counts, either the second or the fifth or the sixth or something shortest constitution in the world, it doesn’t get amended for reasons I described. And it’s not very specific.

So when we talk about things like equal protection of the laws and abridging the freedom of speech and due process and liberty and so forth, these are not self-explanatory terms. And it’s fair to suggest, I think, although Larry might disagree with this, that they’re essentially contested, at least many of them are.

The third proposition. So one is that the legal materials are, it’s unclear what the right legal materials are because it’s unclear what we’ve actually committed to. The second is that even if we assume that we’ve got the right materials, they are themselves quite vague and incorporate essentially contested ideas. And the third proposition is that judges are not philosophers or academics. And this is obvious as far as it goes, but I think the implications of that fact are not sufficiently discussed. The courts are agents of the state. They exercise a coercive power over people in order to resolve political disputes. And when I say political disputes, I don’t mean about tax policy or whatever, I mean disputes that involve a political disagreement about various things.

This is of course not unique to the US Constitution, but I think it is relevant to how we think about what makes a virtuous judge. Again, their job is not to resolve abstract legal questions. Their job is to resolve conflicts between people and to do so in ways that invoke the violence of the state as their backup. So these are state institutions. So if all that’s right, then I think the role of judges in the character that one should seek in a judge within this particular context, the context of constitutional law is maybe more ambiguous than we might have imagined. It’s natural.

I think if all the things that I’ve said are true, it’s natural to ask why give judges these kinds of powers at all? If we’re talking about exercising coercive political power and the underlying norms that they need to apply are essentially contested, why have judges do this work at all? Why replicate political contestation via some unaccountable actor, unaccountable institution? This is a really important question, but here’s where I think the virtue of humility comes in.

If we’re going to use judges in constitutional law and not just resolve these disputes through other forms of politics, then it means we believe in the law of politics distinction. We believe that there’s something that judges are doing that other kinds of actors are not doing. But I think we don’t necessarily reify the law politics distinction by invoking different norms, equality versus equal protection of the laws. Politicians can talk about equality, but judges must stick to the language of the constitution, which is equal protection of the laws.

The perception that this distinction is not conceptually interesting, that judges who are trying to figure out, “Okay, does equal protection of the laws require that the state not engaged in race-based affirmative action?” Or does it require that they do? Precisely the opposite. Does it necessitate race-based affirmative action? That’s not a question that the legal materials provide any clear answer to in traditionally legal terms, calling it equal protection of the laws rather than some kind of moralizing about equality doesn’t change what the task is.

And so the way to reify the distinction, the law politics distinction is by having different kinds of decision makers with different levels of tenure protection and with different kinds of socialization decide certain kinds of questions. I think in effect to lower the temperature of politics, that’s where I think judges are at their best. So what makes for a virtuous judge under those conditions is ultimately a recognition of the plurality of sources of value when it comes to constitutional law, recognition of the genuine pluralism of the nation. This is the most significant and underappreciated difference between 2022 and the founding is that we are a genuinely pluralistic nation with lots and lots of different visions of the good, and we have an underlying ethos that understands those people, all of those people to count. And that’s going to produce all kinds of conflict that has to be managed by state institutions and simply not managed hierarchically.

So there’s got to be recognition on the part of a judge in these circumstances of genuine pluralism. Again, it’s offensive to suggest that momentous political questions today that we the diverse people that we are disagree about should be decided on the basis of minoritarian views that excluded others on the basis of their race and their sex. This is, I think, a question of virtue and not a deontological question or a question of consequences.

Now I’ll just make one other point, which is that recognition of the importance of pluralism in constitutional law requires going back to this virtue of humility, a certain kind of posture, a certain kind of temperament towards the kinds of commitments that deserve judicial recognition, rights for example, but also requires acknowledgement of the competing presence of other commitments. So there are a lot of different competing commitments. We don’t have a very good way of deciding which of those commitments are the ones that matter more than others. And those decisions have consequences for how much people feel recognized by constitutional adjudicators.

And so it requires, I’ll use the term that Robert Alexy, the German constitutional theorist uses, optimization of a variety of different values rather than maximizing one or the other. It requires a drawing on practices of mediation, which is to say part of the job is to enable peaceful collective self-governance, not just to award winners and losers within legal disputes.

And so this is maybe a little bit different than who owns Blackacre. And I think the ultimate lesson that I want to suggest is that we can’t take politics out of public law. And indeed I think we should shouldn’t try to take politics out of public law because public law is the way in which we govern ourselves. And so we have to govern ourselves through politics, but we can use law and use judges in the service of effective constitutional governance. And doing so requires certain habits of mind that I associate with the idea of virtue. Thank you.

Joel Alicea (38:32):
Well, I have plenty of questions, I’m sure the audience does as well, but I wanted to just quickly, Professor Solum if there was anything you wanted to say in response to Professor Greene and if he wanted to respond. I wanted to give you a chance before I dive into questions, but if not, I can just dive right in.

Larry Solum (38:48):
I’d love to hear your questions and the audience’s questions as well.

Joel Alicea (38:53):
Okay. Very well. I want to pick up on one of the themes of Professor Greene’s remarks, especially towards the end there, this point about pluralism, this what Ross would call this fact of reasonable pluralism in a liberal society, this persistent disagreement among people in a free society and what implications that has for politics and for law. And I think Professor Greene touched upon how central that is in thinking about constitutional law. Professor Solum in your work you’ve also pointed out that perhaps virtue jurisprudence could be a different way of approaching persistent disagreements in legal theory that seem irresolvable in many ways.

I want to ask potentially as a challenge to what both of you have said is virtue theory or virtue, I’ll just say is an approach to judging that is centered on virtue as both of you, I think were proposing in different ways. Is that actually a way past persistent disagreement, given that virtue requires some account of the good? We only know if someone is acting virtuously, if we know what the good is. And that fact of reasonable pluralism, of persistent disagreement extends precisely to that, to what is the good. And so if we have that persistent disagreement about what the good is, we’re not going to agree on what the contours of virtues and are including humility. So I was wondering what you would say in response to that puzzle.

Larry Solum (40:36):
It’s a deep puzzle. And I just want to start out by saying the fact of pluralism, I think is a fact, Jamal is just absolutely right about this. We live in a society where there is fundamental disagreement about basic questions, questions about the good and questions about the nature of justice. And so we need to be able to acknowledge that fact of pluralism, any approach to the law, and I’m not limiting myself to constitutional law here, that fails to acknowledge this fact about our contemporary circumstances is just not going to be realistic and it won’t address the set of problems that we actually have. So now, does virtue theory provide us with resources to think about this question if we think about virtuous judges and how a judge equipped with the virtues would approach the problem of disagreement? Does that give us any insight, any way into this problem?

And I think that it does. I just want to say that I agree with Jamal that humility or something like it, I might quibble about the word, but something very much like this is very important because under conditions of pluralism, what a virtuous judge won’t do is substitute their own vision of the society they would like us to become for where the society is actually at. And in a pluralistic society that means that on many questions we’re not going to agree on the substance, we’re not going to agree on reproductive autonomy versus the right to life of the unborn, that’s not something that is going to serve as the basis for agreement. And so a virtuous judge is going to have to try to look for a way to address these deep and persistent disagreements that’ll work. And that I think implies that we need to look beyond outcomes, beyond our preferred results in important cases and think about processes.

And so democratic legitimacy, I agree, is absolutely a key value and it is a reason why courts ought to be respectful of decisions made through democratic processes. I think that that is right. I think the rule of law is a very important value that can serve as a basis for agreement. I think that the fact of pluralism, the fact of disagreement, counsels in favors of judges who have this virtue of lawfulness, there’s a lot of common ground here. Jamal talked a lot about originalism. I’m an originalist and of course it’s very hard to restrain myself from not getting into a debate about originalism, but that’s not why we’re here. That’s an important topic, but it’s not why we’re here, in my view. We’re here to think about whether the concept of virtue might help us make some progress. And I’d like to suggest that it might.

Jamal Greene (45:06):
So I’ll just say a little bit in response to the question which I take to be a kind of, do you have a infinite regress problem? If we fundamentally and constitutively disagree, then we can’t agree on what virtue requires, and so it can’t be helpful here. And that may be right at some level, but I’m not a nihilist and so you’ve got to start somewhere and ultimately try to persuade people that there are ways of making progress.

I’ll go back to my third proposition, which is that judges are agents of the state and are not just theorists or academics and say that if they were just theorists or academics, then we might just have to rest on, we just can’t overcome our disagreements. And so what are we going to do about that? But the fact that they are engaged in politics or as state institutions means that they can understand their role not necessarily as having to resolve the disagreement, but as having to manage the disagreement, which is to say, to engage in politics, which I’ll say not as a pejorative, but politics as managing disagreement in peaceful ways.

And I’ll in fact use the example of reproductive autonomy as an example of this. Because what is interesting about this particular topic is yes, of course it is the case that because we’re going to disagree as a people about how far reproductive autonomy goes, how to think about the rights of the unborn and how those relate to each other. But it is also the case that in most countries in the world, this is not a source of persistent and existential political conflict. There are ways of reaching, maybe not in the US today, maybe we’re too far down this road, but around the world there are political equilibria. Those political equilibria don’t eliminate disagreement. People still disagree, but they recognize that they live in a society with others who may not be of like mind and they use the modes of politics to figure out ways of having a relatively stable consensus around even this very difficult and controversial topic.

And I think, and part of the book that Professor Alicea mentioned, how rights went wrong is really about how judges can participate in the process of reaching that kind of political equilibrium without sacrificing their role as being judges rather than politicians or other kinds of actors. So I think it’s very important, and again, I do think it implicates questions of virtue in this context for judges to constantly understand themselves as institutions of management of conflict and not of resolution of disagreement, because I don’t think that that’s something that can be done in this context.

Joel Alicea (48:41):
I’ll just have one more question and then we’ll throw it open to the audience. If we’re going to accept a virtue centered idea of judging, I would think that one of those virtues that we would think judges should have is the virtue of justice, which Professor Solum really focused on in his remarks. But we can’t have a virtue of justice unless we know what is due to people, since that’s what justice is, it’s giving to each what is there due. And that means that there is some relationship between, we need some account of the relationship between justice and law. Which again, Professor Solum you picked up on quite a bit in your remarks. I wonder if a virtue centered account of judging necessarily has implications for how we think about the nature of law, and has implications for jurisprudential debates about legal positivism, natural law, what law is, because it seems like some sort of virtue centered account of judging require some understanding of what law is in order to understand what the virtue of justice is.

Larry Solum (49:51):
Well, thank you. Of course this question is dear and dear to my heart. Yes, the virtue of justice understood as lawfulness exactly addresses the question about the nature of law, if to be a just human means to be a lawful human, and if by law we have an understanding that the foundation of law is not enactment. Enactments have legal status because they are recognized by an underlying system of social norms or customs. So the way a statute acquires the status of law is by its relationship to a set of social norms that recognize the authority of the legislature. And that authority is not unlimited, an enactment that departs too far from the underlying system of social norms. It won’t get uptake, it won’t be the law in action because the members of society won’t treat it as such. And of course we’re all too familiar with laws that don’t work because they depart from the underlying system of social norms.

There’s another point, just very important, and haven’t talked about it yet. So let me just say one thing about it. For it to be a law, it’s not enough that a lot of people accept it either as an enactment pursuant to a socially recognized authority or that the norm itself, and many laws of course directly reflect underlying social norms, is accepted by a lot of people. To be a law it needs to bear the right relationship to human flourishing. So that’s an important part of the picture. And that part of the picture is so hard in our society because of pluralism, because of disagreements about what a flourishing human life is. And I’m not sure I agree with the idea that judges should see themselves as mediators, but I do think that judges need to take into account the conflicts that Jamal identifies as giving rise to the need for mediation.

And so this is a particularly difficult problem and this is why practical wisdom is so important, why judges who lack this virtue, the virtue of being able to see what’s truly valuable and what’s workable under the factual conditions we actually face. This is why you just can’t be a good judge without this characteristic. And I just will say I think we have a lot of very bad judges who lack practical wisdom. And I think one of the reasons why this is true is because of these deep value conflicts which have led political actors to try to conquer the judicial system by appointing judges who will vote political preferences and not do the job that judges need to do. So I just think we have a really big problem and in this I’m in total agreement with Jamal.

Jamal Greene (54:08):
Well that’s always a nice place to end, with total agreement with Jamal. But I’ll just say something very brief to add to this, and partly brief because this is not a question that speaks to me in a deep sense, in the sense that I don’t have and have never been able to develop strong opinions about the nature of law. I am interested in judicial behavior, I’m interested in adjudication, I’m interested in the resolution of political conflict through courts. I haven’t arrived, at least I haven’t taken the position that any of my views depends on a position about the nature of law. What I will say is that, and I’ll just refer back to some of my prior, feels like a very long time ago work, this article that was mentioned earlier, Pathetic Argument in Constitutional Law.

The article was about the appeals to emotion in constitutional judging. And one of the underlying arguments is we see this all the time in practice, even though there are standard accounts that say you’re not supposed to do this. And I think precisely because the legitimacy of at least constitutional law relies on a certain degree of acceptance, social acceptance of what judges are doing and how they’re connecting what they’re doing to social norms. Part of the job of the judge is involves persuasion. Part of the job of the judge is to make people believe that the things that they say are right.

There are systems the way in which judicial opinions are written suggest that judges don’t understand themselves to have that to take a judicial decision where the law really does have the publicity of a legal code. Well, our job is just to tell you what’s in the legal code and then you believe it. We don’t think of our higher law in that way. At least in part because we don’t think of our higher law in that way, we also write opinions differently and we appeal to certain kinds of resources including people’s emotions.

Joel Alicea (56:47):
I do want to make sure we get in at least one question. So any questions from the audience before we conclude? Professor Walsh, my co-director from CIT.

Kevin Walsh (57:05):
Thank you for this. Just a question, what about the virtue of obedience for a judge? Recently I was talking with a colleague at another school and he said, “I’m not sure that that is as helpful.” So contrast obedience with humility, if the way that law works as it is to be backward looking so that we said there was some type of settlement in the past that was intended to be looked to in the future to resolve problems.

It seems obedience is looking to someone else’s will, a will other than the judge and precisely as an aspect of justice might give us some purchase over humility. And maybe it’s because it’s easier to argue about what counts as obedience rather than what counts as a humble decision. Take Dobbs, right? One that we’re all familiar with, which was the most humble decision there. There was one that invoked humility more than the others. Is that an easier or harder question than which was the most obedient? And I understand that obedience we’re then going to replicate, we’re going to go back to law, what is it? But I just thought I’d invite reflection on whether it’s useful to argue about obedience rather than humility.

Jamal Greene (58:44):
I’ll try to start, and I guess the first thing I’ll say is that I may have to think about it more, but I do think my sense is that obedience is a judicial virtue in the sense that you describe, which is to say judges should not be substituting their will for the command of whatever the law is. I think in a lot of contexts, including the context in which the fields I labor in, that just ends up being question begging. Because we disagree about what obedience to the law requires, and I think both sides in Dobbs would say that they were being both obedient and humble. I should say all three sides. I think that Chief Justice Roberts is the opinion that invoke humility directly. And they would all say we’re being humble to precedent and obeying what we think the law is versus to the democratic will and what we think the Constitution is to a certain judicial role.

And so I don’t know how much progress we can make. Throughout this conversation, I’ve kept thinking about my favorite quote from Ronald Dworkin in his written work, which was from, and Larry will be familiar with this, I think it was from a Fordham symposium, maybe on his work-

Larry Solum (01:00:24):
It was.

Jamal Greene (01:00:25):
… where he said, or maybe or he may have mentioned this in one of his books as well, but he said, “People keep asking me why is it that you’ve elaborated this very comprehensive constitutional theory, but all you see is happy endings.” It all just lines up with Ronald Dworkin’s conception of the good. Isn’t that a problem? And he says, “Well, of course I aim for happy endings. The only alternative is to aim for unhappy endings.” Well first he said, of course, “Of course this doesn’t all line up with all of my views.” Which it’s to say that when we talk about certain kinds of legal materials, of course at some level you’re aiming for something that allows the system to work in some way, that those consequences are part of the value that a judge sees and what they’re doing.

And so you can’t escape that at some level. You can’t escape some degree of judgment. And judgment is always going to be exercised by people with discretion in the direction of things that they think are good as opposed to things that they think are bad. And it becomes very hard to unpack where their discretion is being used in an improper way.

Joel Alicea (01:02:04):
Anything you want to add Professor Solum?

Larry Solum (01:02:07):
There’s so much rich stuff there. I think I just want to say this, I think Dworkin was fundamentally wrong when he emphasized happy endings. Dworkin’s theory is that the judge is very much a moral philosopher who answers the deep questions, what’s the best ideal of equality? What’s the best theory of the human good? What is procedural fairness? What power should the national government have? And his theory is that the judge should aim for the ending that the judge thinks is happy. Now I’m exaggerating because he’s got this whole thing about fit and justification, and it’s the moral theory that best justifies the law as a whole, that the judge should follow. But the happy ending point really captures what he’s up to. So we do not live in a world of happy endings. We live in a world where our society is deeply divided, and if we’re going to get along with each other, then my happy endings can’t all be realized, that’s just not possible.

I have a view of how the good society would work, but in a pluralist society, and especially in a pluralist society characterized by the deep divisions that we’re experiencing at the current moment, we need to recognize the tragic nature of constitutional choices. If we’re going to get along, if we’re going to be able to mediate these deep conflicts, that means that all of us are going to have to sacrifice things of great value, that’s the world in which we live.

So I just think Dworkin and got it completely wrong, that the judge does not aim at the endings the judge thinks are most happy. The judge has to aim at endings that are possible in a world that is deeply divided. And that means lots of things have to be considered. But one of those things has to be the law. And the law is not the same thing as obedience. Obedience is not a virtue. The disposition to obey commands is not a virtue. Lawfulness is the virtue. Lawfulness is constitutively related to the social norms, customs, and positive enactments recognized by those social norms in the society. So yes, there is in a sense obedience, but it’s obedience to the law, not obedience to other humans.

Joel Alicea (01:05:31):
Please join me in thanking our panelists.

Larry Solum (01:05:34):
Thank you.

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