Abstract
This article explores judicial references to what judges may or may not do, in their own words “in good conscience.” It assesses the most common situations in which federal appellate judges use this term and it discusses the propriety of different uses and placements of those expressions of conscientious commitments that play into judicial decisionmaking. It distinguishes between expressions of primarily institutional conscience (that is, the commitment to certain institutional values, responsibilities, or limitations on what the judge may do) and expressions of primarily personal conscience (that is, the commitment to the individual values or beliefs of the judge who expresses the matter of conscience). Having explored these categories of expressions, and the muddy middle ground between them, the article discusses questions of the legitimacy of conscience as an input to judicial decisionmaking and as a matter for open expression.
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