A judge in Virginia recently made news for refusing to follow controlling precedent from the state Supreme Court. The judge, Dean S. Worcester, explained in Virginia v. Cabrera that while lower courts are bound to follow decisions from higher courts, the doctrine of stare decisis has "rare exceptions." This was one such case. And the firestorm against the judge began.
This is not an easy situation, by any means. It began when defense lawyers in Virginia began to use the writ of coram vobis motions to reopen old convictions. This is a seldom used writ that allows the reopening of cases to point out "any clerical error or error in fact for which a judgment may be reversed or corrected." While the issue was on appeal to the state Supreme Court, the U.S. Supreme Court decided Padilla v. Kentucky, which held that defense lawyers must tell their clients the consequences of pleading guilty in court -- including deportation -- for unrelated cases. The state Supreme Court subsequently concluded that "ineffective assistance of counsel does not constitute an error of fact for the purposes of coram vobis." What, then, is the effect of the Padilla decision in Virginia?
This is where Judge Worcester and public opinion appear to have parted company. As he wrote in a 13-page order, "[t]he decision of the Virginia Supreme Court leaves Mr. Cabrera without any remedy to correct what the United States Supreme Court has found to be a constitutional violation in the proceedings." This is no small matter. The question is thus, how should a conscientious judge reconcile her moral beliefs with her legal rulings, especially when the law as understood by a higher court is in direct tension with the judge's moral universe?
This is not a new question. To take a noted historical example, how should an anti-slavery judge decide a case under the fugitive slave laws? Consider here the words of Robert Cover, in Justice Accused:
In a static and simplistic model of law, the judge caught between law and morality has only four choices. He may apply the law against his conscience. He may apply conscience and be faithless to the law. He may resign. Or he may cheat: He may state that the law is not what he believes it to be; and, thus preserve an appearance (to others) of conformity of law and morality. Once we assume a more realistic model of law and of the judicial process, these four positions become only poles setting limits to a complex field of action and motive. For in a dynamic model, law is always becoming. And the judge has a legitimate role in determining what it is that the law will become.
This is another way of saying that the choices facing Judge Worcester were not simple one, nor was the answer he gave. To deride it without first coming to grips with the difficulties that inhere in the question itself is a disservice both to the rule of law and to judges themselves. Nothing is ever as simple as critics make it out to be, and Judge Worcester's order is no exception.
What then explains Judge Worcester's order taking on the state Supreme Court? There would appear to be no political advantage, not in Virginia, and not in the current climate. The strategic account is also problematic, because the judge is clearly swimming against some very strong legal and political currents. In fact, this case reminds me of the Harold Baer debacle in the mid-90's, when the federal judge overturned himself due to political pressures.
But this case is still qualitatively different. Judge Worcester is siding with a political minority in the face of legal and political arguments to the contrary. And illegal immigrants have few influential friends in legislatures across the country, national or state. They have no rights that anybody is bound to respect, if the conventional wisdom is to be believed. Yet Judge Worcester still found it prudent to take their side. In his words, "[i]f this Couurt were to abide by the ruling [of the state Supreme Court], a constitutional violation will stand uncorrected, as he remedy of habeas corpus is not available to the Defendant in this case. For the reasons stated above, the Court will not allow this to happen."
To which I must ask, is this what a "profile in courage" looks like?