“Where is the standard of review in Judge Noonan's opinion?” The question has been posed—I am confident—more than once. I first heard it when I clerked for Judge Noonan, from a friend clerking elsewhere on the Ninth Circuit. My friend wanted to know by what standard of review Judge Noonan had reached his result. “It's not there,” I replied, “and come to think of it, it never is.” “Well,” retorted my friend, “how can that be? In our chambers, the standard of review decides the case.”

That little exchange (which is not apocryphal) rendered me speechless and thus got me thinking about the fetters that bind judges. While I disdained such a facile incantation—indeed, caricature—of the judicial “can't,” I accepted that while appellate courts rarely stand on the shoulders of giants, they do not sit as though the trial court (or agency) never rendered a decision. If appellate courts are not to be second trial courts, there must be some deference to the earlier proceeding, and that might usefully be designated the standard of review.

“[T]he fulness of the earth is yours, the beasts of the field and the fowls of the air … and the herb, and the good things which come of the earth … [a]nd it pleaseth God that he hath given all these things unto man; for unto this end were they made to be used, with judgment, not to excess, neither by extortion.”

The Church of Jesus Christ of Latter-day Saints (the “Church”) is the great success story of American religion. Members of the Church (“Mormons”) now constitute more than five percent of the populations of Arizona, Hawaii, Nevada, and Wyoming, a far higher percentage of Idaho and Utah, and nearly two percent of the United States as a whole. Mormons fill five seats in the United States Senate (including the majority-leader chair) and about a dozen in the House. A Mormon recently completed a serious bid for the United States presidency. And their numbers are growing worldwide.

We take for granted in our Western tradition a certain convergence between morals and law. Morality, in so far as it applies to our public lives, is assumed to follow legality. We believe that in normal social circumstances we can recognize the moral values of a nation in its law. We therefore reject any suggestion that there can be such things as amoral politics or unpolitical morality. We assert that the fundamental moral principle in politics ought to be the observance of our country's legal processes, since legal process ought to coincide with moral conviction. When this is not the case, we insist, when there is no assimilation into the political arena of the moral convictions behind our laws, then the laws themselves will lose respect and we shall have more Watergates and worse.

In this article I propose to look more closely at this conviction that the legal standard is the moral standard for politics and government. I make three affirmations about law as a standard for public morality: first, it is a minimum standard; second, minimum though it is, law is nonetheless a necessary standard; third, because it is both minimum and necessary, law as a standard is incomplete.

Bob Cover's work was, at the end, explicitly concerned with the law as an instrument of violence. Unsurprisingly, then, he addressed himself to the question of capital punishment. Surprisingly, though, he said “I am not an abolitionist” — surprisingly, that is, to those who understood that Cover was a radical in politics and who believed that because one touchstone of contemporary liberalism is opposition to the death penalty, radicals (who are however not liberals, after all) should support abolition of the death penalty. As Avi Soifer said, “We all are the worse for being unable to argue about that issue with Cover, and therefore to learn from him.” In this essay I want to think about why someone who is drawn to Cover's legal thought, as I am, might be inclined to take a similar position to his on the death penalty. I hasten to add, though, that I do not pretend here to represent Cover's thought; I have no idea why he was not an abolitionist, only why I am ambivalent about the death penalty. Nor do I have any reason to believe that the lines of argument that I will sketch here are ones that Cover would have found acceptable or even interesting.

In Justice Accused, Robert Cover explores the tensions faced by “antislavery” judges—judges who strongly believed that slavery was immoral—when they were called upon to decide cases under laws that upheld the legality of slavery. Cover focuses on the tension created by the divergence of law and personal morality in such situations, which he terms the “moral-formal dilemma.” After analyzing the legal and historical context of these cases, Cover identifies certain rhetorical devices used by such judges in their attempts to mitigate this tension. Specifically, Cover labels these dissonance-reducing behaviors as (i) elevation of the formal stakes; (ii) retreat to a mechanistic formalism; and (iii) ascription of responsibility elsewhere.

In the course of researching the attitudes of nineteenth-century rabbis about American slavery, David Cobin found that the name Sabato Morais featured prominently among rabbis who had publicly expressed strong anti-slavery sentiments. This information sent Cobin to the American Jewish History Library where some of Morais's papers are archived to find original documents on the matter. There he found sermons from 1861 to 1862 with English script title pages and text all written in Pitman Shorthand, presumably by Morais himself. One of these, an undated document entitled The Slavery of the Bible, described as a lecture, seemed to be exactly on point. Cobin's first hurdle, however, was transcribing Morais's lecture. After a significant search he found Dorothy Roberts, who had become an expert on Civil War Pitman Shorthand specifically in order to engage in this kind of scholarly transcription. It was soon clear, however, that transcribing a more than one hundred and forty year-old shorthand written for oneself was not a simple matter. There were obsolete words, partial words, undecipherable words, words left out, references to obscure incidents, incomplete quotations, and words in multiple languages. Cobin enlisted the collaboration of his colleague Earl Schwartz as co-editor, and together they partnered in the transcription process with Dorothy Roberts. Roberts transcribed the shorthand as best she could. Cobin and Schwartz then researched the history, filled in the Judaic references and mined old dictionaries and their own imaginations for language of the times to fit the words Roberts could not fully transcribe. Roberts always made the final decision on the appropriateness of the editors' suggestions in light of the shorthand. This work yielded the transcribed lecture, The Slavery in the Bible that indeed spoke about slavery in the time of the Bible, but not about American slavery. Morais's focus was on a humane form of slavery in contrast to slavery in Sparta and Rome. Unlike Rabbi Morris Raphall's discourse on The Bible View of Slavery January 15, 1861 that was used by Southerners as a defense of slavery, Morais's lecture provided little material to fuel the conflagration then raging. The editors have concluded that Morais's lecture was likely delivered as a response to Raphall's widely publicized discourse. The Slavery of the Bible is included with the four transcribed Sabbath sermons published here.