There Is No “Morality” Exception

As charged, Josh Kendrick made the argument that the defense lawyer should put the needs of the defendant ahead of any societal desire for racial neutrality on the jury. Not only is this a reflection of the ethical duty to zealously defend, but the recognition that in the clash between the Sixth Amendment right to counsel and the Equal Protection Clause, a defense lawyer’s duty is to the former.

For having done as charged, he received this reaction:

The question is: Do the ends justify the means? Seems like a decided question. As Caleb writes, “Unequivocally, the answer is no.”

You have defined the ends as “win, win, win.” You don’t care if the client is innocent or guilty. You don’t care if you destroy a witness’ reputation or career by admittedly misrepresenting and distorting the truth. Your goal is to get every client off so nobody ever goes to jail. And you think morals are relative.

I just can’t find a bit of this persuasive. Do lawyers study moral philosophy or jurisprudence anymore?

Putting aside the commenter’s lack of comprehension of the competing interests involved,* or that this was a debate, he expressly relied on morality. He even asked the question of whether lawyers “study moral philosophy,” demonstrating no clue whatsoever of the lawyers’ role.

This isn’t to blame the commenter for not understanding. He wasn’t malevolent in challenging the morality of something about which he understood nothing, but he did reflect a general affection for the squishiness of rationalizing outcomes under such vagaries as “morality.” As Josh wrote in the post, “whose morals?” Wise people appreciate the question, but the world isn’t made up of people who care to risk a headache.

Where do people come up with such odd conflations of law and morality? Rationalizations by respected scholars like Harvard lawprof Noah Feldman do grave damage. Addressing the precedential value of Korematsu, as I did the day before, he began by butchering doctrine:

The legal doctrine of stare decisis holds that precedent ordinarily remains in place until it is overturned. And cases that seemed outdated and disreputable but remained on the books have sometimes recurred in the court’s jurisprudence, particularly after the Sept. 11 attacks.

What’s wrong with that? The doctrine of stare decisis, “let the decision stand,” applies to the Supreme Court in its adherence to its own decision. The purpose is reliability, so we know what the law is and can guide our conduct accordingly. If it changes with every breeze, then society has no clue how to conduct itself, as caselaw today would offer no clue what caselaw tomorrow would hold. Society needs guidance and reliability if we are to know what the Constitution means and conduct ourselves accordingly.

But stare decisis isn’t applicable to lower courts with regard to a Supreme Court holding. Precedent is a separate legal doctrine, requiring inferior courts to adhere to the holdings of superior courts. It’s not that the Supreme Court is the wisest court of all, but that it’s the Supreme Court. As Justice Robert Jackson said, “We are not final because we are infallible, but we are infallible only because we are final.”

So a moral plea for the government not to treat Korematsu as law is not enough. Fortunately, there is also a legal argument for why Korematsu should not be treated as such.

The most straightforward way to reject Korematsu is to understand it not as the definitive word on the true meaning of the Constitution, but simply as a moment in historical time in which particular justices applied the law to specific facts. According to this view, a decision can be wrong at the very moment it was decided — and therefore should not be followed subsequently.

This sleight-of-hand begins with the introduction of morality into the mix, not by saying that it has no place in the analysis whatsoever, but that it’s “not enough.” Implicit is that what follows achieves a moral goal by legal argument. The question is not whether Korematsu is a horribly misguided opinion and thus immoral. It is misguided, though whether that makes it immoral is for philosophers to debate.

But Feldman’s circumlocution applies to every decision ever. We’re to accept the premise that precedent can be dismissed by “a moment in historical time,” which is every moment, “in which particular justices,” which is a slur on Justice Hugo Black, who wrote the majority opinion, and those who joined him, as if we need only follow opinions written by the justices we like, “applied the law to specific facts,” which is every decision ever.

This facile argument empowers every person to reject the Supreme Court’s holdings with a shrug. #NotMySupremeCourt That such an argument is proffered by a HLS prawf, and appears in the newspaper of record, is disturbing. Sure, there is a goal that must be achieved, the elimination of Korematsu as a justification for bad actions by a regime. And sure, in this instance, the target is certainly unworthy of defense. Contrary to the usual reaction of the groundlings, opposing intellectually dishonest means doesn’t mean opposing worthwhile ends.

There was, and is, a far better legal argument in Feldman’s op-ed, putting aside his reliance on then-Yale prawf, later dean, Eugene Rostow’s argument at the time that Korematsu was a terrible decision. Lawprofs love to cite to each other for support, notwithstanding the fact that no one else cares.

Rather, the stronger argument is that the slice of Korematsu’s holding** that authorized the imprisonment of Americans based on ancestry or national origin because it sufficed, under strict scrutiny, in times of war, has come so close to reversal by its universal repudiation and condemnation, by justices and the government, that a lower court would risk fate and reversal by holding that it no longer enjoyed precedential value. Despite the technical flaw of Korematsu not having been reversed, a judge could reliably distinguish its use as a weapon against Muslims today on that basis.

It’s thus hard to blame the commenter to Josh’s post for taking a swan dive down the morality hole, despite its inapplicability, when Harvard lawprofs do the same thing. The irony is that the commenter’s cry was that Josh was arguing that the ends (acquittal) justify the means (“You don’t care if the client is innocent or guilty. You don’t care if you destroy a witness’ reputation or career by admittedly misrepresenting and distorting the truth”), when that’s precisely the use to which Feldman puts his flavor of morality to empower people to believe they’re entitled to ignore law whenever it fails to meet with their personal moral approval.

*The commenter not only layered his flavor of morality on top of the issue, but grossly mischaracterized Josh’s argument as well.

**As was noted in the comments, Korematsu was positively cited by the Supreme Court in Regents of the University of California v. Bakke in support of the constitutionality of affirmative action.

14 comments on “There Is No “Morality” Exception

  1. B. McLeod

    “Moral philosophy?” Why would we need to study that? We have officious, holier-than-thou “progressive liberal” know-it-alls to tell us what’s right and wrong. (No need to even ask).



    It is also worth noting the improper conflation of morality (like social justice concerns) and legal ethics is insidious as well. Consider the unanimous adoption of Model Rule 8.4(g) on August 8, 2016, by the House of Delegates in, of all the places, San Francisco:

    It is professional misconduct for a lawyer to:
    (g) engage in conduct that the lawyer knows or reasonably should know is harassment or discrimination on the basis of race, sex, religion, national origin, ethnicity, disability, age, sexual orientation, gender identity, marital status or socioeconomic status in conduct related to the practice of law. This paragraph does not limit the ability of a lawyer to accept, decline or withdraw from a representation in accordance with Rule 1.16. This paragraph does not preclude legitimate advice or advocacy consistent with these Rules.

    Here was the explanation for the Rule change:

    “One of the main reasons for moving the anti-discrimination provisions to the black letter of the rule from the Comment was because the comments to the rule are only guidance, it was felt there was a need for a black letter rule that would be enforceable in disciplinary proceedings. In the words of immediate past ABA President Paulette Brown,

    ‘The current Model Rules of Professional Conduct (the “Model Rules”), however, do not yet reflect the monumental achievements that have been accomplished to protect clients and the public against harassment and intimidation. The association should now correct this omission. It is in the public’s interest. It is in the profession’s interest. It makes it clear that discrimination, harassment, bias and prejudice do not belong in conduct related to the practice of law.’”

    Peter Geraghty, director, ETHICSearch, ABA Center for Professional Responsibility, ABA adopts new anti-discrimination Rule 8.4(g), Your ABA News for Members (September, 2016)

    A new paragraph [5] of the Comment stating that “A trial judge’s finding that peremptory challenges were exercised on a discriminatory basis does not alone establish a violation of this rule” was also added. Having dived down the social justice rabbit hole, the ABA engages in the ultimate in Gertruding with this “not alone” non-exemption.

    Finally, we should also be “comforted” that the Rule applies almost EVERYWHERE and almost to EVERYTHING lawyers do.. As the new Comment [4] explains:

    “Conduct related to the practice of law includes representing clients; interacting with witnesses, coworkers, court personnel, lawyers and others while engaged in the practice of law; operating or managing a law firm or law practice; and participating in bar association, business or social activities in connection with the practice of law.”

    All the best.


    1. SHG Post author

      Ironically, one of the posts I considered writing this morning, and might yet have written tomorrow, dealt with Rule 8.4(g), as I have in the past, relating to a law review article written by noted androgenous ethics prawf and lawyer-hater, Stephen Gillers. wherein he wrote:

      We can be confident that the kind of biased or harassing speech that will attract the attention of disciplinary counsel will not enjoy First Amendment protection.156 But a lawyer may claim that the rule is vague or overbroad and should be declared unconstitutional even if his or her own speech is not constitutionally protected.

      But I chose not to and wrote this post instead. Kinda seems pointless after your comment, though.



        Sorry, I jumped the gun on you. I apologize.

        But I would be very interested in your take on this new ABA rule and related commentary. I’m guessing others would be as well.

        One of the reasons my court handles ethics matters by itself rather than depending upon the state folks is because of the fear of rules such as this. We explicitly provided under our local rules that we may consult ethics codes but we don’t adopt any of them. The Rule (Neb. Gen. R. 1.7(b)(2)) states:

        (2) Conduct. Attorneys must refrain from conduct unbecoming of a member of the bar.
        (A) The court declines to adopt other codes of professional
        responsibility or ethics.
        (B) However, and in addition to any other material, the court may
        consult other codes of professional responsibility or ethics to
        determine whether a lawyer has engaged in conduct
        unbecoming of a member of the bar

        All the best.


        1. B. McLeod

          Oh, Hell. That stupid rule is awful. It reflects the extreme degree to which the death-spiraling ABA has become the altar of the movement to impose politically correct speech.

          I went to a CLE a few weeks ago, in which lawyers from the largest firm in the state spoke at length as to how poorly drafted and open-ended this thing was, and the resulting problems with determining what it means to prohibit, as well as whether the drafters believed they could really repeal the First Amendment.

          In my decades of practice, I have never commented on a rule change, but when the request comes around on this one, I surely will.

  3. David Meyer-Lindenberg

    And yet, Korematsu is the law of the land. Saying we’re going to ignore SCOTUS because “justices and the government” no longer like a decision doesn’t seem much better than doing it because it doesn’t meet with our personal approval.

      1. B. McLeod

        But not the president who scored the “win.” Of course, the apology does show how much more refined and civilized we are than the generations of prejudicial, slack-jawed cretins who defeated the Axis powers. Tummy-rubs for everyone!!

        1. SHG Post author

          Well, the president who scored the win was very progressive in his vision. The apologist president, not so much despite having an exceptionally good speech writer in Peggy Noonan. The best he could do was hit the broad side of a wall.

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