Abstract

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 seminal 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. The Article identifies cases in which, the evidence suggests, judges intentionally have framed the law to achieve a particular outcome. The Article also suggests that this kind of lie is occasionally justified. There is a thin line between enforcing law that is profoundly immoral and being complicit with it. The Article sets forth a moral theory of subversion, which would allow judges to ethically mediate conflicts between law and morality. It recommends judicial lying only when it will thwart extreme injustice - a recommendation that would reduce the subversion that is now endemic in our justice system. The Article situates its moral theory of subversion alongside other theories of adjudication that tolerate rules-departure and other ethical constructs that permit ends-justified lying. Recognizing that subversion is a controversial strategy, the Article concludes with an argument against symbolic or moderate responses to profound injustice.