“The job of the judge is to do what you think is right,” said retired Supreme Court Justice Stephen Breyer recently on the PBS NewsHour. Breyer — who is promoting his new book, “Reading the Constitution” — expressed this idea again when he said that, as a Supreme Court judge, “You are pushed by what is right, and that is a fundamental rule.”
We should all hope that Breyer doesn’t teach his Harvard Law School students that the job of Supreme Court justices is to do what they think is right. Judges, including those on the Supreme Court, are not moral authorities. They are legal authorities. It’s not their job to judge right from wrong.
The law and morality are not one and the same. Laws can be immoral, wrong, unjust or unfair. After all, Jim Crow laws mandating racial segregation used to be the law of the land in the American South. Likewise, current laws may prohibit actions that are widely considered morally permissible. For example, according to recent Gallup polls, 70 percent of Americans believe that smoking marijuana is morally acceptable, and 70 percent think that the use of marijuana should be made legal, even though marijuana is a Schedule I substance according to federal law.
What is legal and what is moral don’t always align. Even the constitutional and the morally right don’t always match. In Buck v. Bell (1927), the Supreme Court ruled as constitutional a Virginia eugenics law authorizing forced sterilization of people who were considered “unfit to reproduce.”
An ancient philosophical argument known as the Euthyphro dilemma clarifies the point about the difference between morality and the law. In Plato’s dialogue “The Euthyphro,” Socrates asks, “Is the holy holy because it is loved by the gods, or do they love it because it is holy?”
In other words, does religion command a particular action because it is morally right, or is that action morally right because religion commands it? Suppose religion commands X. Is X morally right because religion commands it or does religion command it because it is morally right?
On the one hand, if doing X is morally right because religion commands it, then whatever religion commands is morally right. This would make morality arbitrary, as morally wrong actions would become right, and vice versa. Not to mention the fact that different religions command different, often inconsistent, actions.
On the other hand, if religion commands X because it is morally right, then X was morally right even before religion commanded it. This would make morality independent of religion. Therefore, morality is either arbitrary or independent of religion. That’s the dilemma.
Presumably, few would want to accept the result that morality is arbitrary. So, we must conclude that morality is independent of religion.
Now, let’s take the lessons of the Euthyphro dilemma and apply them to the question of whether the law is a moral authority. That is to say, if it is legal to do X, is it also morally right to do X?
Well, just like in the Euthyphro dilemma, the options are as follows: Either doing X is morally right because the law says so or the law says so because X is morally right. On the one hand, if doing X is morally right because it is the law, then whatever is legal is also morally right — including Jim Crow laws, Nazi Germany’s Nuremberg laws and other morally reprehensible laws.
On the other hand, if X is legal because it is morally right, then X was morally right even before it became legal. This would make morality independent of the law. Therefore, morality is either arbitrary or independent of the law. That’s the Euthyphro dilemma all over again. Since few would want to accept the result that morality is arbitrary, we must conclude that morality is independent of the law.
Contrary to what former Justice Breyer said in his PBS interview, it’s not the job of Supreme Court judges to do what they think is right, because morality and the law are not one and the same. Their job is simply to judge what is constitutional and what isn’t.
Supreme Court justices are legal, not moral, authorities. Their expertise lies in law, not ethics. They should not pretend that they have the authority to judge right from wrong.
Moti Mizrahi is a professor of philosophy and ethics at the Florida Institute of Technology in Melbourne, Florida.
