No Place for Ethics: Judicial Review, Legal Positivism, and the Supreme Court of the United States

The U.S. Supreme Court's judicial review is based on a mistaken positivist understanding of law as separate from ethics, which can contaminate both. Hill argues that an understanding of natural law theory provides the basis for a constitutive relation between ethics and law without confusing their distinct roles. The Court has an overriding responsibility to carry out its review with reference to normative ethics from which the U.S. Constitution is derived and to which it is accountable. Applied in an analysis of five major Supreme Court cases, this appreciation of ethics reveals how wrongly decided these cases are.

Format: Paperback / softback
Length: 240 pages
Publication date: 15 May 2023
Publisher: Fairleigh Dickinson University Press

In his book "No Place for Ethics," Hill makes a compelling argument that the contemporary approach to judicial review by the U.S. Supreme Court is deeply flawed due to its misguided positivist understanding of law. According to Hill, law is merely a set of rules imposed by authority, and it should be kept separate from ethics. Asserting any relationship between the two is seen as contaminating both, either by transforming law into an instrument of ethics or by making ethics an expression of law. This misguided legal positivism was recently exemplified when the Supreme Court declared that the Centers for Disease Control and Prevention (CDC) was acting unlawfully by extending the eviction moratorium to combat the spread of the Covid-19 Delta variant. While the Court acknowledged the undeniable benefit to the public, it mistakenly believed that acting for the greater good equated to acting unlawfully.

To rectify this error, Hill proposes that a deeper understanding of natural law theory can establish a constitutive relationship between ethics and law without blurring their distinct roles. He argues that the Court must rely on normative ethics, which is derived from the U.S. Constitution and to which the Court is accountable, to secure this relationship. While the Constitution confirms certain individual liberty interests, it does not originate those interests that have their roots in human rights that predate it.

At the core of Hill's argument lies an appreciation of ethics as an objective and principled framework. He emphasizes that ethics should guide human behavior at its very core, based on principles such as justice, truth, and reason. Applied to an analysis of five significant Supreme Court cases, this understanding of ethics reveals the profound flaws in these decisions. By examining these cases through the lens of ethics, Hill demonstrates how they fail to uphold the fundamental values and principles that should shape legal and societal decisions.

In conclusion, "No Place for Ethics" offers a critical examination of the relationship between ethics and law in contemporary society. Hill challenges the misguided positivist understanding of law and advocates for a more holistic approach that recognizes the intrinsic connection between the two. By grounding judicial review in normative ethics and emphasizing the objective nature of ethics, Hill provides a framework for achieving greater justice and integrity in our legal system.

Weight: 358g
Dimension: 152 x 230 x 16 (mm)
ISBN-13: 9781683933250