My aim in this paper is to examine the role of legal moralism in the reasoning that underlies some high profile cases decided by the Supreme Court. In so doing, I provide a sketch of a version of legal moralism that arguably addresses the most serious concerns of some of its critics. My thesis is roughly that the decisions in Bowers and Barnes are ultimately indefensible and the decisions in Loving and Lawrence are indeed correct. But despite appearances to the contrary, legal moralism is not the culprit in Bowers and Barnes, because what might appear to be instances of legal-moralist arguments in the prevailing opinions in those cases are either variants of other types of argument or applications of untenable versions of legal moralism. Further, the arguments employed by the Court in the prevailing opinions in Loving and Lawrence are at least consistent with the most plausible version of legal moralism and would have entailed that Bowers and Barnes be decided differently. Indeed, Justice Stevens's dissent in Bowers contains important parallels with the most plausible versions of legal moralism, and Justice Scalia's dissent in Lawrence relies on an implausible version of legal moralism.

Criminal sanctions are typically inflicted by the state. The central role of the state in determining the severity of these sanctions and inflicting them requires justification. One justification for state-inflicted sanctions is simply that the state is more likely than other agents to determine accurately what a wrongdoer justly deserves and to inflict a just sanction on those who deserve it. Hence, in principle, the state could be replaced by other agents, for example, private individuals. This hypothesis has given rise to recent calls to reform the state's criminal justice system by introducing privately inflicted sanctions, for example, shaming penalties, private prisons, or private probationary services. This paper challenges this view and argues that the agency of the state is indispensable to criminal sanctions. Privately inflicted sanctions sever the link between the state's judgments concerning the wrongfulness of the action and the appropriateness of the sanction and the infliction of sufferings on the criminal. When a private individual inflicts punishment, she acts on what she and not the state judges to be a justified response to a criminal act. Privately inflicted sanctions for violations of criminal laws are not grounded in the judgments of the appropriate agent, namely the state. It is impermissible on the part of the state to approve, encourage, or initiate the infliction of a sanction (for violating a state-issued prohibition) on an alleged wrongdoer on the basis of a private judgment. Such an approval grants undue weight to the private judgment of the individual who inflicts the sanction.

According to legal conventionalism, a legal system cannot come into existence and be sustained over time unless legal officials see themselves as working together with their fellow participants in the practice of law for the purpose of achieving coordination or alternatively realizing a joint endeavor. This thesis has traditionally been thought to support a positivist understanding of law. The paper challenges this piece of common wisdom. It aims to establish that the idea of cooperation among legal officials that figures so prominently in conventionalist accounts of law may in a suitable form be appropriated by a robust version of natural-law theory. It claims that participants in the practice of law may be understood as having reasons of political morality to heed the acts and decisions of their fellow participants and calibrate their own behavior accordingly. It takes the value of democracy to illustrate the point. Democracy furnishes a reason for courts to give effect to democratically reached decisions rather than work out on their own how best to adjudicate disputes before them.