Photo by Cameron Casey

​THE FLIGHT FROM THE (MORAL) RIGHT

By Joel Levin

The flight from moral responsibility continues unabated. The politics of former President Trump and the culture that created him and that he spread, a culture of revenge, humiliation, and attacks on those possessing the wrong religion, nationality, sexuality, or political party, along with an utter disdain for democracy, is the big story of the last decade, but the craven behavior of Congress has followed closely behind. Contempt for the worst off, scorn for Ukrainians fighting for their life, condescension for the environment, schoolyard insults and derision of immigrants and political opponents, and disrespect for the truth have been hallmarks of the Republicans in Congress. Now, as we have a tripartite system of government, the misconduct of two justices of the Supreme Court follows closely in line. Justices Thomas and Alito, in various ways, have received gifts from those who expect good rulings and get them. They have sought to persuade the body politic about certain political matters that may come before the Court, including Alito’s attack on any ethics rules that might implicate him. This follows a significant set of decisions on the part of these judges and their allies in favor of basically only two Constitutional Amendments: the Second favoring guns and one section of the First protecting religion. Interestingly, neither of these are directly implicated or have clear ties to moral principles. 

Several sections of the United States Constitution closely reflect moral principles: the rights to speech and assembly, due process, equality, the prohibition of cruel punishment, the abolition of slavery, fair trial, protection of one’s possessions, the vote. Neither of the two favored Amendments of the political Right – one involving guns, the other religion – are rooted in moral principles. Guns may (or may not) be useful for safety, although that is an empirical question, certainly a political one, but not one implicating morality. As for religion, belief systems may be protected as speech or assembly, but that is apart from the religious tenets and practices. We allow such belief systems despite doubts or criticism regarding their accuracy or truth, or whether they are healthy for their members or society. The right to religion in that way is no different than the right to embrace any political ideology or economic theory and approaches or school of psychological thought. Each might be protected as a guarantee of individual autonomy for all to have their own private views, religious speech, and sectarian assembly without regard to their truth or value. But that is true in psychology for those who are you Freudianism versus behaviorism versus structuralism. Implicated are basic speech and assembly rights under the Constitution. However, the issue of religion itself, one which might offer comfort or welfare, solace, or encouragement, education, or social cohesion, is a matter that we think of as a welfare right or welfare interest; that is, an interest not unlike the interests in health, prosperity, safety, education, and other areas inherent in the process of human thriving. They are important, but they are not directly moral matters. Religion is no more a moral right than other systems of beliefs.  

When we examine the rulings of the recent Court, actual moral values that do underly the Constitution – voting rights, privacy rights, environmental rights, asylum rights, due process, legal justice, liberty rights, and other measures of fundamental decency – have been treated with utter contempt by these justices. We will return to this shortly. 

The conduct of the Court in general and any justices in particular are large subjects, ones usually left on the one side to journalists reporting on the daily derelictions of moral responsibility, and scholarly authors of weighty tracts giving expansive pictures of larger actions on the other. What I want to point out here might seem a smaller matter, although it is symptomatic of the entire problem, a fundamental problem in a society witnessing the flight from moral responsibility.

Many want us to believe that the origins, creation, and crafting of moral truths, principles, concepts, and the right things to do originate with one of two places, and from those two places only: religion and positive law. Not only is it false to think that these are the only two sources of moral principles, but it might be better stated to say that neither of them is the right place to look. Instead, we should look to morality itself; a place too many for too long are too fearful to search. That moral cowardice has helped to lead us to where we are today. 

We need to address, then, at least briefly, the two usual areas that are treated as the sources of morality: religion and law. Many simply think that, as to religion, it is insane to believe that it is not a (or the) source of morality, as it is their source of morality. They believe that regardless of the fact that, staying just with biblical text alone, the repeated presentation often bereft of disapproval of murder, rape, betrayal, savagery, hypocrisy, and a bleakness of the historical settings of thousands of years ago, all rooted in a primitive science, a biology and physics, and astronomy we know with certainty to be false, still morally instructs us. That is, despite often having a dim recognition of all that is bleak, incoherent, dystopic, evil, and false, people nevertheless think that Biblical text is the source of morality. Let me borrow here, briefly and without doing full justice to it, the famous argument against that position by the German Enlightenment philosopher Immanuel Kant. The Kantian argument would point out that we can judge religions for their tolerance, their inclusiveness, their interest in peace, and their ability to provide personal fulfillment, the ability to allow individuals to grow and prosper and flourish, or, alternatively, providing roadblocks to any of these. We might admire, for example, the passion for peace of the Quakers, the traditional anti-slavery stance of the Baptists and Methodists, the racial tolerance of Islam, the charitable commitment required by Judaism, the love of animals of the Jains, or the spiritual commitment of Buddhism. 

In doing so, we judge each of these religions and judge them ethically based on moral values that overlap by definition, outside the relationship, as we are using them (the moral values) to judge these religions. We may find that a religion we favor could nevertheless improve (reform) in some moral way, perhaps not be as intolerant of heretics or gays, perhaps more interested in charity than large buildings, perhaps open their clergy to women, or in some other way improve. Kant argued that there must be something outside religion that we use to judge it, to judge whether it is fairer and more beneficial, more righteous and tolerant, and more interested in peace and charity. That something else is morality or ethics. That is where we need to start. In fact, that is where we need to continue if we are to understand and promote moral conduct.

That is not to say that we can gain nothing from religion or not enjoy any benefits from it at the moral level. We can learn from many religious stories, precepts, prophecies, and fables through their reason, wisdom, compassion, equality, justice, and the rest, beginning with matters as straightforward as “do not kill,” “turn the other cheek,” “do unto others as you would have them do unto you” or the four immeasurables of Buddhism – “kindness, compassion, sympathetic joy, and equanimity. ” But again, we do this because they reflect, not create morality. In that way, religion is no different from novels and art, journalism and history, or spirited conversation and debate.  

The same could be said for the other too-often-assumed source of morality, the law. In fact, the entire debate about the rule of law generally assumes that the rule of law is invariably beneficial, equitable, fair and just, something quite different from the legal rule of the Nazis, Stalin, Pinochet, Idi Amin, Pol Pot, or the Taliban. That is a mistake. We ought to judge law in the same way we judge religion: by how much it reflects the moral values we treasure. In that the law is more just, fairer, equitable, and, in general, respectful of and expansive in considering individual rights, we think more of it. That is, we judge law by morality, not morality by law. Otherwise, the entire concept of civil disobedience, a concept often thought to embody the highest moral plane – whether led by Mahatma Gandhi or Martin Luther King Jr., or those who brought down authoritarian states more recently in Eastern Europe (the Velvet, Singing, and Orange Revolutions) or with less success in North Africa and the Middle East, or even at the earliest, with Antigone in ancient Thebes – is nothing but criminal misconduct. 

Again, as with religion, the law can align with moral principles and track moral concepts. It can be a source of moral authority, moral example, and the right thing to do. In reality, as legal rules age, the legal text can take on the reverential and even sacred nature of religious text. Age is no guarantor of wisdom, nor is the historical always truthful or beneficial. The somewhat arbitrary, and certainly ill-informed compilation of the New Testament was put together at the Councils of Rome, Hippo, and Carthage. What was apocryphal, what was included, what was discarded, what words of text would be holy, and what would be secular, if not heretical, was frozen. Christianity is left with books that include not only the only ones legitimate, but the only ones that could be legitimate, the text endorsed by the Almighty. The U.S. Constitution sometimes comes in for much the same treatment, as do its phrases, words, and even its punctuation. They are viewed as though delivered by an Almighty lawgiver, typically with little context as to what is going on historically or personally or governmentally, using semantics bereft of context or reasonable linguistic theory or defensible intention, and used to trump any knowledge that has come along in the last couple hundred years that might actually be beneficial to those governed. 

The text is all. If we want to know whether the U.S. Constitution, which separates the protections of patents, which were thought to mean machinery and devices, and copyrights, which were thought to include books and art, tells how to label source code – a form of computer language which encases information that operates and makes possible certain machines and devices. Are we really forced to look with increasing intensity at the language of the Constitution or the thoughts of people like James Madison and Gouverneur Morris who helped draw it up? That is, was all revealed in text in the 1790s so comprehensively that it included solutions to how to treat computer software, which was not invented until the 1930s and 1940s by Alan Turing and John Van Neumann? By scrutinizing the New Testament, we might similarly ask whether we can establish the complex legitimacy, morality, or personhood issues that arise from in vitro fertilization, now considered taboo by many Christians based on their interpretation and understanding of the New Testament text and erudition written almost 2000 years earlier.

It is not the primary responsibility or goal of either religion or law to comport with what might be required morally (or, for that matter, be beneficial environmentally, medically, or economically). Religion is a far-flung concept and embodies community and ritual, prayer and an afterlife, devotion to text and certain social practices, and a worldview about creation, the Almighty, a messiah, the end of time, clergy, social practices, miracles, and loyalty. The fact that heresy, that is, believing something not conforming with a certain religion, could be considered a form of evil or deserving of ostracism or punishment, shows the distance between religion and science. 

Similarly with law, the goals, functions, and workings of law are meant to provide safety from crime, security, and (a measure of) fairness and certainty in contract, tort, and property matters, processes for adjudicating family matters of marriage and divorce, death, guardianship and minors, governmental and corporate governance, and administrative regulations of the complex modern state, just to begin. None necessarily implicate ethical issues or could be guaranteed to protect ethical concerns. Moreover, more easily than religion, law can operate as a force for evil, as any of the too many examples from authoritarian, fascist, despotic, or totalitarian demonstrates with their own malevolent legal systems would show. Modern legal systems, ones that might fairly be called liberal, republican, or democratic, typically have basic laws that protect people and their rights, promote fairness and equity within their legal systems, advocate for and protect equality and liberty, and, in general attempt to raise the happiness, prosperity, and freedom of the populous served by the law. However, we measure the success of those attempts through the lens of a morality separate and apart from the legal system, even if we are reluctant at times to admit that it exists. Put differently, we can see that the United States Constitution, Biblical text, and any other number of examples drawn from law and religion have approved and even endorsed slavery, while no moral justification could be found to justify any part of it.

The United States has witnessed the moral degradation in the Presidency, most vividly, of course, with Donald Trump. Just a short list of Trump’s moral inequities – religious bigotry, imprisoning migrant children and removing them from their parents, degrading women, attacking judges, pardoning war criminals and Trump’s cronies, calling neo-Nazis very fine people, profiting from his office, aligning with authoritarian dictators rather than our democratically elected allies, undermining the election, encouraging insurrection, and endless lying and degrading name-calling of anyone in the way – shows that degradation. Unfortunately, Congress is working hard to catch up. Consider just a few of the positions of members of the Congressional GOP: the Rothschilds caused California’s forest fires, Bill Gates and George Soros are behind a conspiracy to take over people’s minds through the Covid vaccine, Hillary Clinton is involved in a pedophile group in Washington, Biden should be impeached despite no evidence of wrongdoing, global warming is a hoax, and there is no evidence Trump broke any law. The long-proclaimed brake on the worst of this behavior has been the courts, and in particular, the Supreme Court. Here, the conduct of Thomas and Alito is considered.

I do not want to suggest a long history of universally exemplary behavior by Supreme Court Justices. There is no such history to be had. Just consider two sitting Justices today, Brett Kavanaugh and Clarence Thomas. Both have experienced extremely credible witnesses testifying before the Senate to their sexual misconduct, even their commission of sexual assault. Nor should we necessarily gloss over the numerous overtly racist Supreme Court Justices who dominated the Court almost until the time of World War II, most notoriously displayed by Chief Justice Taney in the Dred Scott decision. Steeped in the myth of an Almighty-inspired founding myth and the creation of a holy text, Taney wrote: “We think . . . that they [black people] are not included, and were not intended to be included under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time [of America’s founding] considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights and privileges, but such as those who held the power and the Government might choose to grant them”. 

Of course, both the Court and the country have changed. But by what criteria might we condemn Chief Justice Taney’s words, or the decision of so many justices who endorsed slavery, abetted genocide of a number of Native American tribes, and savaged basic rights for children and workers and women and immigrants? What standards should we employ to condemn the Court’s approval of allowing (as late as the 1940s) American citizens to be locked up by the tens of thousands simply for sharing an ancestral country of origin, one of the three ancestral countries that the United States was at war against? (That is, those whose ancestors were from Japan, but not those whose ancestors were from Germany or Italy. If that criterion had been uniformly applied, the Commander of the American forces, General Dwight D. Eisenhower, would have been imprisoned rather than allowed to plan and carry out the successful European Theater of Operations. For that matter, ancestry evenly applied would have required locking up the Italian-American, Rose Bonavita, aka Rosie the Riveter). 

This brings us to the question raised when assessing the conduct of Justices Thomas and Alito. Quite briefly, we know that Justice Thomas has received a great deal of largesse in the form of trips, transport and vacations, and financial advantages bestowed on various (wife, mother, nephew) family members. Some of this controversy is described in the ethics complaint against Justice Alito by Senator Sheldon Whitehouse. It states, “In the worst case, facts may reveal, Justice Alito was involved in an organized campaign to block congressional action regarding a matter in which he has a personal stake. Whether Justice Alito was unwittingly used to provide fodder for such interference, or intentionally participated, is a question whose answer requires additional facts”. Not in Senator Whitehouse’s complaint are the allegations that Alito was the beneficiary of interested donors’ largesse, including private jets and social trips. Wealthy benefactors have treated Justice Thomas to at least 38 vacations, 26 flights on private jets, helicopter rides, box seats at sporting events, stays at luxury resorts, tuition payment for his nephew, and the purchase of his mother’s house with her right nevertheless to remain living there. Again, there is more, particularly involving his wife in cases that have come before Justice Thomas on the Court. How should we assess all of it?

To assess whether a judge acted ethically, we might want to look at religious texts. However, as we just discussed, that text is not itself dispositive of ethical questions, but must be judged by some outside ethical criteria to see what the moral implications of a text would be. Moreover, there is the uncomfortable fact to some, freeing to others, that we live in a secular society, with a secular government based on a secular Constitution overseeing a secular legal system. Picking out any religion’s idiosyncratic view and sectarian moral stance is prima facie barred from our consideration. Alternatively, we can look to the legal system itself to see whether something has gone a mess in the way these justices behave. Again, we should step back here for a moment, and not just be concerned about how Justices Alito and Thomas have behaved, but remember the past behavior of Justices Thomas and Kavanaugh with regard to sexual assault,  and the justices who thought it appropriate to return slaves, disenfranchise women and immigrants, strike down workplace protections, incarcerate Japanese-Americans, and confiscate land from Native American.

Assessing the situation usually involves a debate on two areas, neither unimportant, but both beside the ethical context here. The first is how judges should judge themselves. That is the very old question of who should oversee the overseers, check the authority of the authority, and watch the watchers. It is the eternal problem of keeping government in check. Clearly, the Court has no appetite to police itself. In fact, it has contempt, for any suggestion that anyone should police it or that it even needs policing. In any case, there always needs to be an end to who is judging the judges, and just as we have not been able to rely on Presidents to be presidential, a la Trump, or legislators to act in a civilized legislative way, a la Steve King, Louie Gohmert, Paul Gosar and Marjorie Taylor Greene, we have little confidence in solving the problem of the authority reining in their own authority. 

The second point is the legal rules. The question generally becomes: how successful have those in authority been in evading the legal rules, or more directly, those legal rules that govern the misconduct? For example, does the issue of undue influence on a sitting judge come down to whether the consideration is a vacation rather than cash when that consideration may be improper influence at best and arrive at worst? Is one acting properly as a judge when one lobbies against reasonable rules of conduct that might apply to them? What about attending a political function meant to raise money but ducking out of the money-raising session itself? In another context, has one violated any legal rule as President by banning immigrant followers of Islam, or breaking up asylum-seeking families? Are legislators rule-breakers because they believe in the lunacy of QAnon? What rules? One that might at least require sanity if mere reason is too much to ask? Are judges engaged in misconduct because they condone slavery, ethnic imprisonment, and the slaughter of Native Americans? Are legislators like Paul Gosar when he calls Joint Chief of Staff Chair, Gen. Mark Milley, “a homosexual-promoting-BLM-activist” who should be “hung”? 

Legal rules generally operate with sharp corners, that is, they either apply or they don’t. It is all or nothing. Chief Justice Roberts likes to talk about calling ball and strikes. A good legal rule for baseball is the three strikes and you’re out (which is actually a short form for three strikes and you’re out or two swings and misses followed by a foul ball thereafter caught and you’re out. The fact that rules have exceptions one can list doesn’t make them any less all or nothing). What largesse to accept, meetings to attend, racial comments to hurl, and threats to make are technical matters of legal interpretation. They should be. But the underlying ethical issues that motivate the creation of these rules are independent sources of judgment that not only motivate action, but curb behavior. They serve as separate measures of judgment.

Ethical principles are not like legal rules. They lack sharp edges. They involve texture and gradation, excuse and circumstances, degrees and intentionality, duress, cognition, and knowledge. We see this in every ethical dilemma, whether we are trying to figure out when (if ever) to condone or allow euthanasia, under what circumstances to exact stronger or allow mitigated punishment, or how to allocate scarce resources among and to which needy. Ethics is the real issue in many of our legal and political dilemmas, and it is squarely the issue when considering the conduct of Supreme Court justices.

The legal profession was not unaware of this. Legal Ethics, or Professional Responsibility, is a set of rules to get lawyers and judges to behave. It was once an optional course in law schools that was only occasionally taken, not even always offered. It mainly consisted of a number of proscriptions against lawyer advertising, and a few truisms about keeping clients‘ confidentialities, being loyal, and not stealing their money. Then came Watergate, the Waterloo of the legal profession. Before Watergate, it was required virtually nowhere in law school and absent from the bar. After Watergate, it was required. It was mandated in every law school curriculum and required on the multi-state bar exam.

In the 1970s, the legal profession had a choice to make. It could either offer courses and training in Professional Responsibility as, more or less, a set of legal rules or it could, in addition, teach ethics as a way of thinking, acting, reasoning, and conducting one’s life. The profession chose the former. Every few years, codes of professional responsibility would become more and more detailed, seeking to cover new kinds of wrong, barring innovative kinds of misbehavior, and trying to make sure that the very kind of antisocial conduct that motivated the creation of criminal law in our society would motivate better conduct among members of the bar. It has actually done this reasonably well, with new additions, dropping indefensible lawyer advertising restrictions (something that none of the readers here would find surprising), while including greater protections about confidentiality, fiduciary duties, self-dealing, and the sort.

But the creative human mind being what it is, and lawyers, trained to be experts on legal rules, being who they are, the failures are great as well. I am not interested (or particularly qualified) here to offer any series or amendments or changes to the codes. Rather, just the opposite. The failure was partly due to that decision in the 1970s, certainly continuing thereafter, not to deal with morality and ethics directly, but to flee from it, to try to rely solely on the hard and fast legal rule. To use a sports analogy, it is as though unsportsmanlike conduct is not part of the code; rather, each infraction is stated with specificity. If only life were like that, the codes would be a good solution, but it isn’t, and they aren’t. The irony is that as ethics has become more neglected as a discipline, as a way of thinking, and as a way of life, those who actually work and write and debate in the field have become better, more agile, more skilled, and offering better – more justified, better reasoned, more consistent, more textured, more creative – solutions to the problems we face.

Take one concern in the ethics literature: personhood. We assign persons certain rights, allow them interests, provide them protections, and award them freedom and autonomy. Why? What is it that makes some individuals qualify for personhood, but other sentient beings, say animals, do not qualify? What of animals with higher degrees of consciousness, freedom, insight, and curiosity than humans who lack those qualities, either because of prenatal and genetic issues, disease and trauma, or dementia later? Do we treat all humans the same regardless of that (or their) degree of sentience, knowing that we might disqualify certain of those humans, namely, the young and the cognitively impaired, as different, and with regard to rights, as lesser? How do we make trade-offs among humans with disparate human qualities, where personhood is challenged or not challenged? How do we measure the value of those who are remote – malnourished children in Africa, war-terrorized indigenous populations in Latin America, persecuted minorities in the Middle East, or menaced citizens of any number of autocratic states – when thinking about dividing resources between friends and family of those close to home and those remote individuals? Should we be concerned with the rights or interests of future people, whether fetuses on the verge of their full autonomy or later generations trying to survive a greenhouse-gassed, dystopian world? More immediately, how do we value the lives of immigrants, asylum-seekers, and refugees with the lives of our friends, neighbors, and family?

One mark of a society unschooled or unpracticed in ethics is a lack of shame, lack of feeling guilt, and absence of embarrassment. Name-calling replaces considered judgment, and hyperbolic accusations replace textured analysis, in large part because there is nothing in their makeup to cause restraint. There is a failure within what the Scottish philosopher (and precursor of Kant) David Hume called the indirect passions (including, to begin, pride, humility, love, hatred, and shame), which are among the most important, if at times dangerous, of passions, particularly when left untethered and excluding reason. Thus, those without a moral compass, show that lack through their indifference to hypocrisy, their moral or behavioral inconsistency, their hyperbole that conflates the small with the large (not all transgressions are the same: an unwanted kiss is not a rape, lying about an extra-marital affair is not the same as lying to retirees to effectuate a widespread Ponzi scheme, a well-aimed elbow is not murder). Ethics keeps us within bounds, tames our emotions and outrages, allows us to return to a consistent view of how we assess social actions and judge others. We ought to be embarrassed when we say indefensible things, show me emotional outburst as to minor misconduct of others, if it is misconduct at all, engage in blatant history of hypocrisy when measuring the behavior of others against our own, or feel a total lack of any guilt when we have done things that we teach four-year-olds to be morally impermissible. Abandoning ethical thought and dismissing ethical conduct, demonstrated by misconduct, but also by the lack of shame or embarrassment or guilt, sheds that thin veneer of civilization that keeps us safe. Or in terms of conduct, Aristotle thought that virtue can only be achieved through a habit in the practice of ethical behavior. It is not a one-shot deal. Given that, legal rules often arrive too late to remedy the harm done when scorn for those habits and practices is widespread or, at a minimum, has simply lapsed through indifference. 

When the profession chose to avoid confronting ethics directly, to flee from the moral, not to face the right, it became that much more impoverished because of it. Instead, a maze of conflicting and inadequate rules became all there was. Judges Thomas and Kavanaugh, reminded by their credible, even convincing accusers, Anita Hill and Christine Blakey Ford respectively, of their ethical failings, might respond to the alleged ethical lapses: where is the violation of a specific rule? They could ask of his behavior before he was on the bench and demands: what did I do that is improper? From the dead, Chief Justice Taney, who wrote the Dred Scott (fugitive slave) decision, and Justice Black, who wrote the Korematsu (Japanese internment) decision, would ask: what did they do wrong under the rules? That is exactly what the present Republican majority – a majority who has gutted voting rights, struck down electoral reform, taken lavish gifts from parties with interests before the Court, removed environmental protection, denied the humanity of asylum-seekers, refused ‘Dreamers’ the right to remain in the only country they know, and now fundamentally eroded women’s privacy rights – now would ask. 

The answer is, under the rules: nothing. The better answer – ethically, morally, as a matter of principle – is everything.