"Let's start with first principles. It seems clear to me that a judge may consider moral norms in making judicial decisions. As I explained in my article Social Propositions and Common Law Adjudication, however, judges may not look to their own moral values:Any complex society needs an institution before which claims based on existing societal standards can be heard. In our society, that institution is the courts.20 “If the courts resolved disputes by reasoning from those moral norms and policies they think best, there would be no institution to which a member of the society could go to vindicate a claim of right based on existing standards.” Second, since the judicial system is a peculiarly undemocratic institution, the legitimacy of the adjudicative process requires courts to look to “existing legal and social standards rather than those standards the court thinks best.” Finally, prohibiting the courts from employing their personal standards makes legal reasoning fairer and more easily replicable by the profession. (Page 6)
Instead, judges may consider only those moral norms having substantial support in the relevant community. (See pages 7-10 of my article.) Although my article focused on common law adjudication, I believe the same holds true with respect to constitutional and statutory interpretation. Of course, some would argue that a judge should be an originalist and a strict constructionist with respect to the latter forms of adjudication, which would obviate the relevance of personal or social moral norms. As Justice Scalia one put it:Before proceeding to discuss the morality of capital punishment, I want to make clear that my views on the subject have nothing to do with how I vote in capital cases that come before the Supreme Court. That statement would not be true if I subscribed to the conventional fallacy that the Constitution is a “living document”—that is, a text that means from age to age whatever the society (or perhaps the Court) thinks it ought to mean.
I've got substantial sympathy for that point of view, of course, but I'm assuming herein that evaluation of moral norms is relevant to at least some aspects of what a Supreme Court justice does."
This seems a very thoughtful essay and well worth reading in its entirety.
One question the essay raised for me is found in the suggestion that ". . .judges may consider only those moral norms having substantial support in the relevant community." Would we want to also say that economists, and other social scientists, should evaluate or judge public policy based upon "moral norms having substantial support in the community?" Is economic efficiency a "moral norm having substantial support in the community?"