Ordering Moral Deliberations

This chapter points out that judges are not the only actors through whom democratic values founded on empathic mutual respect and accountability can be promoted. At the center of this study is the Civil Rights Act of 1968, the passage of which was threatened by a Southern filibuster that could be ended by a favorable vote for cloture. It turned out that one senator from Alaska was key to the favorable vote; his vote was cast in a most dramatic way, as he was ultimately persuaded by his realization of the moral significance of what was at issue. The chapter notes that the senator was not commanded by party leaders to vote but left alone to reflect on the matter—he was persuaded by his conscience to do the right thing.

Race Relations: Between Emancipation and Subjugation

This chapter discusses race relations as the paradigmatic judicial effort to protect vulnerable groups under the commitment made in Footnote Four. After the Supreme Court correctly held in Brown I that racial segregation in schools was unconstitutional, and in Brown II wisely paused to enlist the assistance of district courts, the federal Congress, the executive, and others, the Court then failed to continue this approach after the passing of the Civil Rights Act of 1964, the Voting Rights Act of 1965, and the Fair Housing law in 1968 by requiring past intentionally imposed race discrimination in public schools to obtain judicial relief. The chapter then offers suggestions on what the Court could have done—an approach of less intervention by the Court imposing its views of equality on the parties and more promotion of deliberation among the parties to achieve democratic equality.

The Healthiest Possible Soul

This chapter addresses the question of whether social institutions can be designed to promote a just resolution of the conflict between oppressor and oppressed, and whether there is a special role for the judiciary in that regard. It highlights the suffering that oppressors inflict on themselves and explores how that can be turned into emancipation for the vulnerable. The chapter derives from a varied mix of commentators (including a plantation mistress, Alexis de Tocqueville, Hans Loewald, Socrates, and Callicles) for insights on the role of the judiciary, and provides an interesting and enlightening comparison between judges and psychotherapists. It argues that if oppressors can be brought to understand that any benefits of subordinating others are outweighed by the damage they inflict on themselves as oppressors, the obstacles to emancipation might be overcome.

All That Is Solid

This chapter considers the Supreme Court's promotion of the interests of vulnerable people and of emancipation for subjugated groups. There has been a recurrent pattern in American social history of alternating eras predominately characterized either by rigid hierarchical boundaries between superiors and inferiors or by more fluid, egalitarian modes of social authority. The hierarchic eras have focused on fears of social disorder and the consequent need to subjugate disruptive (or potentially disruptive) forces. The more fluid eras, by contrast, have been less fear-filled and more attentive to empathic, egalitarian fellow feeling. There was never a time in these alternating social eras when disorder was entirely suppressed or when the lion and lamb peaceably lay down together. The alternation was more a matter of social emphasis; but the social emphasis did change.

Abortion: Private and Public Considerations

This chapter focuses on the topic of abortion. After rejecting as inappropriate the usual justifications for abortion rights, such as privacy and the harm principle, it presents the equality guarantee and dignity as providing a better rationale and goes on to offer an analysis of a theoretical foundation to deal with the topic: shared egalitarian authority. By conclusively resolving the abortion dispute initially, the Supreme Court missed the chance to invite the disputing parties to face each other to try to ascertain for themselves whether they could reach an accommodation, thereby avoiding a winner-versus-loser result. The chapter then discusses some of the fallout from the Court's attempt to impose a final resolution on a deeply divided public, including the battle between opposing factions to ensure that a majority of judges would be appointed to the Court who would rule their way.

The Democratic Path

This chapter illustrates the Supreme Court's approach to school desegregation. It argues that the Court changed from a hierarchical institution to a more egalitarian or conversational democratic model that recognized the work of others outside the court system (such as psychologists whose views outlined the unequal feeling of segregated black school children) and largely left enforcement of desegregation to local federal district court judges. Overall, the Court adopted an impressive strategic approach to school desegregation. After acknowledging the democratic deficit for blacks in their exclusion from legislative representation, the chapter proposes that the local federal district courts served as surrogate democratic chambers for whites and blacks to work out their differences peaceably.

Enslaving Criminals

This chapter studies the Supreme Court's jurisprudence on the death penalty. It argues that the death penalty must be abolished and submits that even in this context, where mutual respect can be harder to achieve, judicial interventions should foster deliberations among conflicting parties. The judiciary should not be a hierarchal arbiter of winners and losers that leaves no space for further deliberations. The chapter also draws on scholarship about the similarities between the psychotherapist and the judge in their common obligation to separate personal from public values in their roles. It proceeds to a discussion of the imprisonment of convicted criminals and their treatment as “civilly dead,” and concludes with suggestions to enhance the likelihood of an empathic, mutually respected approach to this vulnerable group.

A Living Truth

This chapter discusses the concept of law and the legal and social role of the courts—especially the U.S. Supreme Court—as a moral and social agent for change, particularly in protecting the minority or the disadvantaged in society as opposed to favoring the strong or majority. This raises questions about who is the majority or minority or the stronger or the weaker, and who decides the answers to these questions. The chapter shows how restricting constitutional interpretation to the specific meanings of the original language is too narrow and, given the majestic generalities of that language, even conflicts with the original authors' intentions. But then again, freeing judges from objectively determinative standards excessively opens them to confusing personal preferences with enduring constitutional values.

Respecting Same-Sex Relations

This chapter deals with gays and lesbians as another group that was subjected to serious degradation akin to the terrible mistreatment of blacks. It provides a description of the tension between the judiciary and legislatures in the evolution of the relationship up to the recognition of a fundamental right to marital status for same-sex couples. The chapter characterizes the changes that took place in California, through events that involve the legislature, courts, and the public, as reflecting an egalitarian mode of deliberative authority. The most intriguing similarities between the situations of homosexuals and blacks are in the process by which the judiciary has worked its way toward the remedial attempt. When the Court resolved to change the status of both groups, a similar path was taken.

This Word “Reason”

This chapter introduces the psychological aspects of subjugative relations in society by examining the psychological obstacles and benefits arising from those relations. This reflects a major contribution of a broad scholarly reach to understand the forces at work in human interaction that the legal system should take into account. The chapter also discusses the psychological benefits to the subjugator that result from the subordination of others and that engender profound resistance to the emancipation. This discourse introduces a consideration of the views of various great thinkers—Hobbes, Freud, Libet, Baars, Taylor, Armstrong, Goffman, and others—to elaborate on the topic of the protection of minorities and the weak and the role of the court in that mission.