Judicial Moral Prophecy

Abstract

American judges decry past moral lapses as intolerable. They paint their predecessors’ worst mistakes as tragedies that must never be allowed to happen again. When given the chance to avoid new injustices, however, judges increasingly flaunt their moral indifference. They insist that legal fidelity requires them to ignore whether their own rulings will be remembered as monstrous. But this cavalier outlook—for all its devotion to the past—is remarkably ahistorical. Feats of legal craft have never survived cultural repudiation. When precedents become morally shameful, the quality of their reasoning ceases to matter. The opinions’ authors are remembered not for the technical virtues they displayed, but for the evils they enabled.

This Article explains why courts should contemplate—and heed—the moral judgments of coming generations. Doing so is not an arbitrary projection of personal fancy; it is a corollary of the shared practice of retrospective condemnation. Tenets of cultural morality often achieve judicial recognition, and those truisms inevitably shape how courts perceive their interpretive responsibilities. Methodologies that ignore the outlines of future regret thus threaten to saddle the legal system with precedents that time will construe as lawless.

Despite the formalizing pressures of modern legal discourse, a countertrend has begun to emerge: that of judicial moral prophecy. This growing practice should be viewed as an essential adjunct to the rule of law, rather than a sad diversion from it. Factors that will ultimately eclipse logical precision can and should inform conceptions of judicial duty in the present. And past patterns of failure offer insights for transcending current cultural assumptions. In the end, the legal system suffers when judges inflict tragic harms for the sake of analytical purity. We should stop pretending that legal fidelity blinds us to this recurring lesson.

Keywords: Supreme Court, anticanon, future morality, originalism, societal regret, legal discretion

JEL Classification: K10, K40