Ed Whelan and I earlier this week described, and criticized, Arthur Goldberg’s justice uber alles “jurisprudence”. Goldberg thought that a Supreme Court Justice should first divine the right result between the parties, and then write the law — the opinions — accordingly. This was a common conviction of Warren-era Justices. It shows in the mess they made of constituional law.

Wednesday’s capital punishment decision tees up a good example of the difference between Goldbergism and, well, serious constititutional decisionmaking. Assuming that Goldberg was a death penalty foe, we should imagine that he would have followed the lead of his liberal kindred spirits — Brennan and Marshall, in particular — and contorted Eighth Amendment law beyond sense in a quixotic attempt to stamp out capital punishment without quite abolishing it. Thus the Court’s liberals, starting in the early seventies encumbered capital proceedings with so many procedural hurdles that appeals lasting decades became the norm. And we are still trying to climb out of that morass. In Wednesday’s case we should imagine Goldberg (and Brennan and Marshall) occupying the strange position that, while the Constitution may permit the state to kill a condemned prisoner, the state may not hurt him.

The alternative to Goldbergism is not to ignore justice, or to act as if there is no such thing. One who believes (as I do) that capital punishment is both inherently immoral and surely constitutional does not have to subordinate the law to moral conviction. Not at all. In fact, no judge who honestly believes that the death penalty comports with the Constitution (and the evidence that it does is overwhelming) MAY subordinate the law — consciously distort or lie about the law — to get the “just” result. For that would be immoral, too.

Someone who believes the death penalty is immoral MAY have to recuse himself from a case, if one believes that participating in it makes one an accomplice to an immoral act. But an appellate judge very likely need not do that, for that jurist’s job is not to impose death but rather to review the proceedings below to be sure that judgment according to law was entered. If it was, the judgment should be affirmed.