Roe at 35

Unjust would be New York State banning abortion under the ruling to "let States decide whether to ban abortion" and then preventing New York citizens from entering the Chinese Embassy for abortions, or New York preventing said Chinese doctors from providing said abortions on their property.

Okay, I do not know presently what the regulations are for medical services provided at foreign embassies, but I think there would be ample opportunity to establish "unjust" situations should abortion be delivered back to the States. It is easy to imagine as well as fair and Constitutional remedies to right such injustice given the life threatening results when preventing individuals from having abortion, something State Rights in themselves do not seem to prevent.

Well, under the General Welfare clause, I suppose the Federal government could impose a tax on those States not providing for their citizen's general welfare in order to pay for those deprived of their opportunity to abort and give the money to them for transportation even under Madison's more limited view of what is meant by the aforementioned clause.

Again, under the Commerce Clause one could argue an inequity of "great importance" allows the Federal government to at least remedy the situation where citizens in one state are denied the opportunity of services (ones that could result in death if not administered properly) that exist in another.

The point? Under our Constitutional frame work, there are still plausible ways beyond extraConstitutional means to remedy what the majority of Americans would feel is "immoral and unjust" were some States to deprive those too poor to have an abortion from traveling to a State that allows such services and then back to their original State.

This would be far different than providing such protection to the people of New York that would like to go to Nevada for the weekend.

Simon:

No. At least not at the federal level.

What has this got to do with the federal as against the state courts? Do you think that state judges have a right to overturn unjust state laws regardless of the provisions of constitutions of the U.S. or their own state--even though federal judges (on your view) do not? If so, what makes the difference between federal and state judges? If not, then why bring it up?

The trouble begins when (as Tully alluded to) you come to realize that different people have different ideas about what is and isn't just.

I don't see what the trouble is, and I don't see the pertinence of the objections that Tully raised, unless you've misunderstood my question. I didn't ask whether judges are required to uphold laws they believe to be unjust. I asked whether they are required to uphold laws that actually are unjust, which is a different question.

If there are requirements of justice which are binding, and discoverable, independently of the contents of any statutory or constitutional law, then clearly judges can't have any duty to overturn a law in light of them. But if you intend to take that line of argument, then you'll have your own problems to deal with. (Among other things, it entails the awkward conclusion that there are no independent standards for judging one legal system as better from the standpoint of justice than any other. This seems clearly wrong. Part of the reason to prefer modern American courts to the Star Chamber or the Spanish Inquisition or for that matter the American courts during the days of the Fugitive Slave Act, is presumably that the modern American courts do a better job of securing justice. But in order for you to say so, it must be the case that there are some independent requirements of justice against which all four systems can be held up and compared. In any case, if you don't think so, that's the substantive position you'll need to try and defend, God help you.)

If, on the other hand, there are such requirements, then, whatever those requirements may in fact be, there must be at least some conceivable cases in which a case comes before a judge where (1) the statute which the judge is asked to uphold in fact violates one or more of the requirements of justice, and (2) the judge knows about the conflict between the statute and those requirements of justice. My question is about what the judge's rights and obligations are in such a situation.

What you're urging is for judges to be invested with the power (I put it prospectively because they certainly don't have that power now) to eliminate the work of the legislature and substitute in their own judgment. That's not only pernicious to a democratic system, it obliterates the rule of law, because if the law is whatever the judge in a given case thinks is a just result in that case, no one can know in advance what the law is and take reasonable steps to conform their behavior to it. It becomes a form of secret law, and secret laws are inherently tyrannical.

Well, no, what I asked is whether judges have any duty to uphold laws which are in fact violations of the substantive requirements of interpersonal justice. I've neither said nor asked anything about whether judges should be able to throw out laws based on any old belief they happen to have about justice, whether mistaken or not. I'm certainly willing to grant that judges should not throw out laws based on beliefs about justice which are in fact mistaken.

Given that we are talking only about cases in which the law in question actually is unjust, i.e., where enforcing it would involve committing an injustice against one or more identifiable victims, I cannot see any reason to accept your claim that overturning the law in question would involve tyranny, let alone being "inherently tyrannical." On every definition of "tyranny" I'm aware of, it's enforcing an unjust law that's tyrannical, not obstructing its enforcement.

In sum, Judges have no "duty" to collaborate in the enforcement of laws that they personally regard as unjust (in such circumstances they can and ought to resign) ...

Again, the question is not about what judges "personally regard as unjust," but rather what is in fact unjust. So, taking that modification into account, and taking your (well-taken) suggestion that resignation is an alternative option into consideration, I reiterate my question to you, mutatis mutandis:

Is it your view that no judge has a duty to directly collaborate in inflicting an injustice (since she can resign rather than doing so), but that she is bound in conscience to step aside and allow someone else to inflict the injustice, even though she could have obstructed or prevented the injustice from being inflicted?

If so, why? So far the only answer you've given is the political expedience of compromise in majoritarian democracy. But if expedience is no excuse for personally collaborating in the sin of commission (which you seem to grant, when you suggest that the judge resign), then I cannot see why it's a good excuse for the sin of omission, either.

Picture the scene: next February, having clawed itself out of a deep, deep hole, the Democratic party is finally in a position to start pushing its agenda through a Democratic Congress to be signed by a Democratic President. Because this is a hypothetical, we can assume that all this legislation is actually constitutional. But the courts strike down the whole lot, arguing that it's unjust. Are you happy with such a result? I doubt it.

I almost certainly would be happy with that result, given what the Democratic Party's agenda has generally been when it has been in power. Perhaps you're making some unwarranted assumptions about my political views.