To Harass Judges or Not to Harass Judges

Let's apply a classic moral test.

By Clint Roberts Published on July 25, 2022

One of the seminal moral philosophers of Western history is Immanuel Kant. The small man with the giant brain wrote voluminously on ethical theory at the end of the 18th Century. And while you wouldn’t likely pick a title like Groundwork for the Metaphysics of Morals for your next Audible book, the ideas Kant formulated in works like that set his name in stone. You won’t pick up an Ethics textbook without seeing him in its pages.

The Categorical Imperative

The principle for which Immanuel Kant is probably best known is what he called “the categorical imperative.” It’s straightforward enough. Most imperatives are hypothetical, whether overtly or implicitly. “Don’t smoke if you want to have healthy lungs” is an example. The imperative is “don’t smoke” but only if you want healthy lungs. Another might be, “Put money into savings if you want to build wealth for retirement.” It’s a another imperative (something you must do) with the hypothetical component of building wealth.

A “categorical” imperative, said Kant, is what we need for true morality. We need a moral foundation of duty that is not contingent on consequences for its force. This kind of imperative does not say “Do x if you want y.” It simply says “Do x.” The thing is morally right on its own terms and for its own sake, even if, as is usually the case, there will be positive benefits from it.

Universality

The most popular part of the categorical imperative is the universalizing of just such a moral duty. You could think of this as a kind of test. Here’s how Kant put it: “Act only in accordance with that maxim through which you can at the same time will that it become a universal law”

It has a certain ‘Golden Rule’-ish sound. What the philosopher is saying is basically what your mother was saying when she asked you, “How would you like it if everyone did that?” Simply take the principle on which you’re acting, make it generic, and ask yourself if you would agree to that principle becoming the universal norm and practice of all people.

Example: Imagine you make a mistake that causes someone – your boss, your company, your neighbor – to lose a sum of money. The temptation is to blame someone or something else and thereby shirk the responsibility. Should you act on that impulse? Consider the maxim on which you are acting. It is, basically: “When your mistake costs someone else, lie to protect yourself and divert blame elsewhere.”

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Now that you’ve made it a general principle, are you willing for that maxim to become the universal norm or standard of behavior? Obviously not. Who would actually advocate that as a rule? And thus, according to this test, the decision to dodge the blame is the wrong one. By contrast, a decision to accept responsibility for your error and make restitution is easily represents a universal ethical rule that you would be happy to see practiced by everyone.

The Ethics of Harassing Judges

The moral question of the hour: Is it OK to express your displeasure at the rulings of judges by organizing loud, vehement public protests at their homes and accosting them at other places they try to go?

Plenty of people seem to think that it is more than OK. A young “clinical instructor” at Harvard Law School tweeted regarding Supreme Court justices that “It is our civic duty to accost them every time they are in public. … theses justices should never have a peaceful moment in public again.” This sentiment has been echoed by a lot of people with a lot of followers. So let’s apply the test.

Here is the moral maxim: “When a judge makes a ruling, people who disagree with it are justified in ongoing public harassment of that judge at his/her home, in restaurants and other places.”

Note that we’re not talking about what you are permitted to do legally. We’re asking: Is the universal public accosting of all judges with whose rulings people disagree a good principle to advocate? Is that a society that will work? Is that a world in which you want to live?

The Verdict

Obviously this moral maxim is not feasible. Think about the simple logic of it:

  1. Every judge with whom people disagree becomes a target of ongoing public harassment.
  2. Every judge has rulings that are opposed by different groups of people.
  3. Therefore every judge receives ongoing public harassment nearly all the time.

No society can function this way, and everyone knows it.

As in so many cases, chief moral standard of those who encourage or defend harassment of judges is the double-standard. They want justification to do that which they would not allow others to do. If right-wingers treated Justice Sotomayor, for example, in such a shameful way, it would be an outrage for which they would not stand.

 

Clint Roberts is an adjunct professor at the University of Oklahoma and Southern Nazarene University.

Originally published at How to Read a News Story. Republished with permission. 

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