What can a judge do?

Thanks to those who have been adding their insights to the questions about judges, especially Catholic ones, and their judicial responsibilities to uphold the rule of law in the exercise of their duties. I am not suggesting that Judge Gee of the old Fifth Circuit provides answers to this problem, but he does offer some words worth taking into consideration. As a member of the Fifth Circuit, he upheld a District Court Decision critiquing an affirmative program that worked its way to the Supreme Court under Title VII of the Civil Rights Act. When the Supreme Court reversed the District and Circuit Courts and remanded the case back to the Fifth Circuit, the latter court issued its decision Download judge_gee_weber.doc . Judge Gee had these words to offer regarding what could be done with a decision that he found “profoundly wrong”:

Obedient to the mandate of the Supreme Court, we vacate the trial court’s judgment, as well as ours affirming it, and remand the cause to that court for further proceedings in conformity with the opinion above.

Then, speaking for himself, he offered these thoughts:

For myself only, and with all respect and deference, I here note my personal conviction that the decision of the Supreme Court in this case is profoundly wrong.

That it is wrong as a matter of statutory construction seems to me sufficiently demonstrated by the dissenting opinions of the Chief Justice and of Mr. Justice Rehnquist.  To these I can add nothing.  They make plain beyond peradventure that the Civil Rights Act of 1964 passed the Congress on the express representation of its sponsors that it would not and could not be construed as the Court has now construed it.  What could be plainer than the words of the late Senator Humphrey defending the bill against the charge that it adumbrated quotas and preferential treatment that “the title would Prohibit preferential treatment for any particular group . . . .”? The Court now tells us that this is not so.  That it feels it may properly do so seems to me a grievous thing.

But sadder still tragic, in my own view is the Court’s departure from the long road that we have travelled from Plessy v. Ferguson, toward making good Mr. Justice Harlan’s anguished cry in dissent that “(o)ur Constitution is color-blind, and neither knows nor tolerates classes among citizens.”  I voice my profound belief that this present action, like Plessy, is a wrong and dangerous turning, and my confident hope that we will soon return to the high, bright road on which we disdain to classify a citizen, Any citizen, to any degree or for any purpose by the color of his skin.

Though for the above reasons I think it gravely mistaken, I do not say that the Court’s decision is immoral or unjust indeed, in some basic sense it may well represent true justice.  But there are many actions roughly just that our laws do not authorize and our Constitution forbids, actions such as preventing a Nazi Party march through a town where reside former inmates of concentration camps or inflicting summary punishment on one caught redhanded in a crime.

Subordinate magistrates such as I must either obey the orders of higher authority or yield up their posts to those who will.  I obey, since in my view the action required of me by the Court’s mandate is only to follow a mistaken course and not an evil one.

One of the difficulties judges and the rest of us face is how to make the distinction between the “mistaken course” and an “evil one.” This brings up the point about material and formal cooperation on which Ed Hartnett is working. Judge Gee does not mention recusal as an option, but he does mention resignation. That is an extreme measure that may lead to a good and virtuous person leaving an office in which he or she should remain. But, I think what Judge Gee did by putting into the public record his concerns and his justifications for them reveals that there are alternatives, besides recusal and resignation, to what a judge can do in a case where he or she concludes that some higher human authority, be it a legislature or another judge, is “profoundly wrong.” RJA sj