Why Liberal Judges Rule the Way they Do

“[T]he English students at Harvard University once insisted on the Boston telephone book being placed on the reading list alongside the works of Shakespeare as . . . there is no greater merit in the one than the other. Good and evil are, therefore, totally relative to the society in which these values are held and the attempt by one society . . . to impose their values on others is ‘cultural imperialism’— it represents the destruction of one set of values by another and since all values are held to be equal, there is no basis for this other than an exercise in power.”1

It’s no wonder that today’s courts are whacky and Newt Gingrich is calling for an accounting of the decisions they often make. Judges make rulings as if they have been given a seat on Mount Olympus. We shouldn’t be surprised that they sometimes act like Zeus. The Greek gods were their own law makers whose divinity was that of exalted humans.

Robert Reich, the former U.S. labor secretary under President Bill Clinton, believes people who follow a truly transcendent God, not the capricious pantheon of the Greeks, pose a greater threat to the modern world than terrorists:

“The great conflict of the 21st century will not be between the West and terrorism. Terrorism is a tactic, not a belief. The true battle will be between modern civilization and anti-modernists; between those who believe in the primacy of the individual and those who believe that human beings owe their allegiance and identity to a higher authority; between those who give priority to life in this world and those who believe that human life is mere preparation for an existence beyond life; between those who believe in science, reason, logic and those who believe that truth revealed through Scripture and religious dogma. Terrorism will disrupt and destroy lives. But terrorism itself is not the greatest danger we face.”

Reich is of the reason-only school of law, similar to the method chosen by the French revolutionaries. It was their reasoning that led them to set up a guillotine in the city square for quicker and more efficient executions.

Keith Feiling writes: “Human reason set up a cross on Calvary, human reason set up the cup of hemlock, human reason was canonised in Notre Dame.”2

Whose reason is reasonable? Whose logic is logical? Is it logical to protect endangered species while passing laws that give women the legal right to kill their own preborn babies? Is it logical to say that it was murder when Laci Peterson was killed but not murder when her pre-born baby was killed?

In a “Law and Order” TV episode titled “Monogamy,”3 John Ritter plays Dr. Richard Manning. His wife is seven months pregnant and is found unconscious and bleeding in a parking garage. The attending paramedic reports to Officer Benson that the victim “sustained massive abdominal trauma” that looks “like an emergency C-section.” Someone had removed the baby from his mother’s womb. The investigation leads officers to the conclusion that the woman’s husband (Ritter) committed the crime because he suspected his wife of infidelity. Unless the Assistant District Attorney Cabot can prove that the baby actually showed signs of “legal life,” even if for only a split second after he was born, Manning can’t be prosecuted for murder.

Here’s the logic: If the “fetus” had been killed before “it” had taken a breath, then “it” was not a “person” in the eyes of the law. The ADA must prove that the baby “took a breath” before he was killed. Under this tightly argued set of legal nonsense, the “fetus” magically becomes a baby and enjoys legal status as a person only when “it” takes a breath. Only then can the former “it” be designated a “he” or “she.”

This legal logic is defended by Olivia Benson (played by Mariska Hargitay) in order to maintain the legal right of a woman “to choose,” that is, to choose to kill her preborn baby. On the one hand, the police officers and the ADA are horrified that Dr. Manning has killed this innocent pre-born baby. And yet, the female characters will defend a woman’s right to do what they consider to be horrific when Dr. Manning does it. This is Reich’s “no higher authority” logic in action.

Reich is espousing the ethical philosophy of Immanuel Kant (1724–1804). For Kant, only those things in the “phenomenal realm” — the world of pure factuality, science, and experience — can be known and applied. This should sound familiar. Francis Schaeffer described this philosophy as “the line of despair.” Nothing gets through the line dividing the upper story, where God and morality originate and have meaning, from the lower story where man and his autonomous law will rule.

Man cannot truly know anything that is above or beyond nature that might reside in the noumenal realm, anything that is “supernatural.” Knowledge of God and His moral decrees cannot be known according to Kant.

Where is Kant’s morality found? “The absoluteness of God is found within the moral experience of man. . . .  Kant maintains that the only thing which is ‘good’ without qualification is a good will; acts are morally right when joined with this good will, and agents are morally good only if they act from duty.”4

Reich’s moral worldview, like that of Kant’s, makes all value relative. This is the essence of liberal social theory. Results (utilitarianism) are not the issue; it’s having the right motive. Reich continues by claiming that “the problem” with “religious zealots” is that “they confuse politics with private morality.”

Is Reich saying that politics is morally neutral, and if a person holds a private moral opinion, for example, that kidnapping people and selling them as slaves, that he cannot become politically active on this subject? Isn’t “private morality” driving today’s wild swings in judicial lawmaking?:


“The core doctrine of . . . legal realists” [is] “that when judges resolve a case, they are not seeking out objectively existing legal principles and applying them; rather, they are applying their own policy preferences . . . because there are no universally valid principles. Judges have nothing to apply other than their mere preferences.”5


While Reich uses the language of individual liberation — “the primacy of the individual” — he is actually a statist. He believes that the State is the final arbiter of what’s right and wrong, legal and illegal, moral and immoral.

  1. Peter Vardy and Julie Arliss, The Thinker’s Guide to Evil (MediaCom Education, Inc., 2003), 86. []
  2. Quoted in Russell Kirk, The Conservative Mind: From Burke to Eliot, 5th ed. (Chicago: Regnery, 1972), 7–8. []
  3. Original air date January 4, 2002. []
  4. Greg L. Bahnsen, Theonomy in Christian Ethics, 3rd ed. (Nacogdoches, TX: Covenant Media Foundation, 2002), 282. []
  5. Charles Colson, Justice That Restores: Why Our Justice System Doesn’t Work and the Only Method of True Reform (Wheaton, IL: Tyndale House, 2001), 23. []
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