Accusing Justice: Some Variations on the Themes of Robert M. Cover's "Justice Accused"

Abstract

In 1968, a young Robert Cover wrote what he later called a “short polemic” against judicial complicity in the Vietnam War. “Polemic” is something of an understatement. Cover's short book review of an 1856 abolitionist broadside directed against judicial enforcement of the Fugitive Slave Act became the occasion for a powerful general indictment of morally blind “obedience to, let alone enforcement of, law which violates all that is worthwhile in human community”.Drawing on the memory of the Holocaust and “the screaming silence of the German people,” Cover excoriated the federal judiciary for “re-main[ing] faithful to its long tradition as executors of immoral law,” in relation to enforcement of the draft laws in the Vietnam War era:No judge has resigned in protest. No judge has availed himself of the opportunity presented by a draft case to instruct the public on the moral issues of the war. No judge has publicly engaged in creative judicial obstruction of the war effort.