'Conscience' Is No Cause for Judges to Flout Laws
By Howard J. Bashman
Sunday, June 1, 2003

May a U.S. Court of Appeals judge refuse to follow binding U.S. Supreme Court precedent if the judge believes that the precedent is unconscionable?

"Yes" is how 9th Circuit Judge Harry Pregerson recently answered that question. Putting aside whether Pregerson deserves to be respected or pilloried for his personal act of conscience, such willful judicial disobedience of a higher court's authority has no place in our judicial system.

In March 2003, the U.S. Supreme Court ruled that California's three-strikes law, which requires a sentence of 25 years to life for certain repeat criminal offenders, did not violate the 8th Amendment's prohibition against cruel and unusual punishment. A companion ruling issued the same day prohibited federal courts, on habeas corpus review, from setting aside as unconstitutionally excessive three-strikes sentences that California's state court system had imposed.

On May 19, 2003, a three-judge panel of the U.S. 9th Circuit Court of Appeals began disposing of a backlog of three-strikes appeals from federal trial courts in California. The U.S. Supreme Court's decisions issued in March dictated the outcome: No matter how draconian the sentences of 25 years to life might appear when the third strike was a petty theft offense, lower federal courts were powerless to grant relief under the 8th Amendment.

The 9th Circuit panel assigned to rule on the backlog of cases consisted of judges Harry Pregerson, Stephen Reinhardt and Susan P. Graber. The 9th Circuit in each case properly rejected the prisoner's challenge to the three-strikes sentence.

But neither Pregerson nor Reinhardt was pleased. In each instance, Reinhardt issued a concurring opinion stating, "I concur only under compulsion of the Supreme Court decision I believe the sentence is both unconscionable and unconstitutional."

Pregerson, taking his displeasure one step further, refused to join in the rulings, writing instead: "In good conscience, I can't vote to go along with the sentence imposed in this case."

The U.S. Supreme Court sits atop this nation's hierarchical system of justice. Once the Supreme Court decides a question of constitutional law, judges serving on lower courts must apply the Supreme Court's ruling, whether they agree with it or not.

A federal judge whose conscience prevents him or her from applying the law faithfully should, at a minimum, refuse to participate in deciding those cases in which the impediment arises. For if one judge can elevate his conscience above the law, so can others, and soon we will have a system where judges at every level are free to decide cases based on personal predilection rather than binding judicial precedent and the texts of constitutions and statutes.

Of course, a party that refuses to obey a court's ruling for reasons of conscience is likely to face punishment for contempt of court.

Judges, no less, are expected to follow the law because that is what the judicial system demands of all participants.

Although no harm appears yet to have come from Pregerson's act of conscience, one easily can conceive of an act of judicial conscience-following that might cause great harm to the rights of a litigant. For instance, the nation is sharply divided between those who believe that abortion should be legal and those who believe it should not. Because the U.S. Constitution does not speak directly to the matter, a lower court judge reasonably could conclude that the U.S. Supreme Court erred in ruling that the Constitution protects a woman's right to have an abortion.

Assume that a hypothetical judge decides, as an act of conscience, that he will refuse to invalidate any law prohibiting abortion, even when such a law runs afoul of U.S. Supreme Court precedent. Every day that an abortion is unlawfully delayed by the judge's refusal to follow precedent would cause the woman to be one day closer to having a viable fetus. Such judicial insubordination could, through delay alone, deny the right to abortion that the U.S. Supreme Court has recognized.

Judicial insubordination is not a liberal or conservative issue, and it is equally intolerable in any of its possible manifestations.

Judges who willfully refuse to follow the binding precedent of higher courts do neither themselves nor the judicial system credit by following their conscience rather than the law.

Judges should not participate in deciding cases where their personal views prevent them from applying the law properly, and judges who do not recognize this truth call into question their very fitness to serve in the judiciary.


2003 Los Angeles Times. This essay first appeared on the op-ed page of The Los Angeles Times on Sunday, June 1, 2003.



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