By Paul Butler. Full text here.
What should a judge do when she must apply law that she believes is fundamentally unjust? The problem is as old as slavery. It is as contemporary as the debates about capital punishment and abortion rights. In a famous essay, Robert Cover described four choices that a judge has in such cases. She can (1) apply the law even though she thinks it is immoral; (2) openly reject the law; (3) resign; or (4) subvert the law by pretending that it supports the outcome that the judge desires, even though the judge does not actually believe that it does.
This Article demonstrates that the fourth choice—judicial “subversion” or lying—is far more common than is openly acknowledged. This Article identifies many cases in which judges intentionally have framed the law to achieve a particular outcome. This Article also suggests that this kind of subversion is occasionally justified. Judges should not have enforced, for example, the law of slavery or the Nuremberg Codes. On rare occasions subversion may be the best of the imperfect choices that judges have when they are confronted with unjust law. There is a thin line between enforcing law that is profoundly immoral and being complicit with it.
This Article describes a paradigm for when judges should purposefully frame the law to achieve a particular outcome. It situates its theory of judicial subversion within other theories of adjudication that tolerate rules-departure. This Article recommends judicial lying only when it will thwart extreme injustice—a recommendation that, if followed, would reduce the largely unprincipled subversion that now occurs.