The late, great Justice Antonin Scalia once remarked, “The judge who always likes the results he reaches is a bad judge.” The principle underlying this axiom is lost on many, who instead render it the other way: Judges must automatically like the results they reach, because they reach the results they like. From there, politicians and pundits take it one step further, decrying any court ruling that deviates from their preferred policy outcomes as simply the result of jurists’ partisan bias.
This hackneyed logic erodes the courts’ reputation as nonpartisan arbiters of the law. But it also has the more dangerous effect of conflating freedom to take an action with societal approval for such an action.
This line of criticism has increased as President Trump nominates more judges to federal courts, but it is not new. On healthcare, same-sex marriage, or First Amendment freedoms, court decisions in recent decades have been distorted to brand judges improperly as partisan. Such clumsy or disingenuous analysis ignores the myriad examples of judges separating political preference from legal decisions and sets aside the fact that judges’ constitutional interpretations can vary widely.
Dangerously, when commentary blurs the distinction between jurisprudence with preferred policies, the public ceases to view the judiciary as an independent branch of government. Instead, people begin to see the judiciary as another political branch, one that exists to impose its undemocratic political will rather than to protect legal and constitutional freedoms. Partisan games, extreme rhetoric, and political assaults on the courts’ legitimacy become more accepted, which in turn crimps freedoms the judiciary should protect.
There are obvious examples of courts protecting citizens’ rights to do things that the presiding judges assuredly dislike. The Supreme Court sided not so long ago with the loathsome Westboro Baptist Church, upholding its right to continue picketing soldiers’ funerals with slogans such as “God hates and punishes the United States for its tolerance of homosexuality” and other “sins.” Although the court doubtless found the group’s behavior odious, it nonetheless ruled resoundingly, 8-1, that the First Amendment protected the protesters’ disgusting behavior. Similarly, in 2010, the court found a federal statute criminalizing video depictions of animal cruelty to be unconstitutional because it was “substantially overbroad.” However abhorrent the subject matter, the court found the constitutional question clear, ruling 8-1 against the statute.
Moreover, accusations of bias against individual judges are rarely consistent. Three and a half years ago, Justice Anthony Kennedy wrote the majority opinion in Obergefell v. Hodges, which concluded that “same-sex couples may exercise the fundamental right to marry.” Many on the Left, including then-President Barack Obama, praised Kennedy for the decision, hailing it as a “victory for America.” But five years before Obergefell, Kennedy wrote the court’s opinion in Citizens United v. Federal Election Commission, which held that the First Amendment protects certain forms of political spending. The Left rebuked Kennedy on that occasion, accusing him of making a “partisan” decision. Obama directly criticized Kennedy’s opinion in his first State of the Union address. Even the judge’s decision to retire last year was treated as a partisan move: “Anthony Kennedy Just Destroyed His Legacy as a Gay Rights Hero,” declared a Slate headline.
During his tenure, Chief Justice John Roberts has been called both a conservative and a “secret liberal.” At the time of the Citizens United case in 2009, Jeffrey Toobin, a writer for the New Yorker and a senior legal analyst at CNN, characterized Roberts as someone who “has served the interests, and reflected the values, of the contemporary Republican Party”. In 2012, Toobin called Roberts’ vote for Obamacare “a singular act of courage” that “insulates [him] from charges of partisanship for the foreseeable future.” On the other side, Roberts’ key votes concerning healthcare and privacy have angered conservatives and Republicans. “No need to wonder whether Chief Justice Roberts was a disastrous pick,” Ben Shapiro tweeted in 2015. “He was. And yes, I told you so at the time.”
Justices need not even take the bench before facing allegations about preferring one party or policy over another. During Justice Neil Gorsuch’s confirmation hearing, he was criticized for his dissent in TransAm Trucking v. Administrative Review Board, known popularly as the “frozen trucker” case. The trucker in question had been fired for leaving his trailer on the side of the road to escape brutally cold weather. Then-Judge Gorsuch argued that although the employer’s decision was not “a wise or kind one,” applicable regulations did not cover the trucker’s claim. Democrats bandied this case about during Gorsuch’s confirmation to paint him as a Republican jurist who “prefered CEOs over truck drivers, executives over employers, and corporations over consumers.”
[Also read: How court history reflects on the ailing RBG]
Yet the chorus shrieking about Gorsuch’s naked partisanship has simmered down of late, thanks to a recent and undeniable streak of ruling for the proverbial “little guy.” Lately, in fact, Gorsuch, who was nominated by Trump, has teamed up with Obama-appointee Justice Sonia Sotomayor to question vague criminal statutes, challenge limitations to the Sixth Amendment’s confrontation clause, and promote the role of civic education in public schools. Last term, Gorsuch even sided against the Trump administration and served as the key fifth vote in striking down part of the Immigration and Nationality Act.
These “unexpected” judicial alliances frequently confound some court watchers, but they should not. Judges do not operate on identical ideological frequencies, even those nominated by the same president. President Ronald Reagan nominated both Scalia and Kennedy, yet they often disagreed with one another and subscribed to different constitutional philosophies. Little has changed. At the Supreme Court this term, arguments have revealed that Trump’s picks, Gorsuch and Brett Kavanaugh, disagree on key constitutional doctrines, such as stare decisis.
To be sure, jurists are not selected through an apolitical process. Presidents pick judges they believe will further their political and ideological agenda. They do this by selecting jurists that, by principle, are expected to reach certain legal results. But this system does not guarantee convenient political reciprocity. After all, “Trump Judges” have already ruled several times against the president in cases ranging from reinstating CNN reporter Jim Acosta’s White House press badge to upholding the appointment of special counsel Robert Mueller.
Other Republican-appointed judges have similarly sided with the Trump administration on certain issues while knocking it down in others. Judge Jay Bybee from the 9th Circuit, a George W. Bush appointee, dissented in favor of Trump’s original travel ban but recently ruled against the administration in a case concerning new asylum restrictions.
Regrettably, these examples and many like them often fall on deaf ears. Commentators and others consistently blast the “partisan” Roberts court for purportedly ruling in favor of their preferred conservative policies. In support, they cite instances where the justices’ votes seemingly fall along partisan lines. This, they suggest, is the routine business of the court.
But it is not. Not only are 9-0 decisions overwhelmingly more likely than 5-4 decisions, but the court consistently agrees to limit the breadth of its decisions in politically charged cases and, in recent terms, has even declined to hear cases in an effort to avoid a political circus on 1 First Street NE.
Still, however, cynicism prevails. As one legal analyst concluded, “One of the enduring myths about Supreme Court justices is that they often turn out to ‘surprise’ the presidents who appoint them.” Interestingly, this conclusion was reached the same year as Justice David Souter’s retirement. Souter was a President George H.W. Bush appointee who often sided with his more liberal colleagues on the bench.
This sort of commentary not only fails to acknowledge the nuances of legal decision-making but invites greater attacks on judicial independence. When the judiciary is seen as simply an extension of the political branches of government, its legitimacy is tarnished in the eye of the public. This is dangerous. America’s founders implemented a system of checks and balances among the three branches. When a branch loses legitimacy in public perception, other branches fill the void. For the judiciary, this may mean presidents refusing to comply with court orders or Congress supporting radical court reforms to satisfy short-term political aims. This harms the delicate balance between branches that exists to protect our freedoms.
When justices are assumed simply to support outcomes aligned with their preferred policy choices or to do the bidding of the presidents who appointed them, harsh partisanship surrounding judicial confirmations becomes more justified. Because justices have life tenure, political actors may believe that the confirmation stage is their last chance to block a jurist who will deliberately rule against them due to personal politics or party loyalty. A no-holds-barred strategy follows, and has followed, from that view. If it continues, we should not be surprised to see increased support in both parties for post-confirmation measures, such as customized recusal rules or impeachment threats.
Our freedom will suffer where trust is lacking. When the judiciary favors, or is thought to favor, policy over jurisprudence, it will be abused and pulled in various directions. When the prevailing wisdom is that the court is a legislature, political actors will try every trick to win votes they consider up for grabs.
No branch is entirely immune from partisan follies, and judicial independence should not be a shield against fair criticism. The courts are not infallible, and Americans should not blindly delegate their own constitutional understanding to judges and justices. But observers should try to avoid easy assumptions based on party. A more careful reading of court decisions, discussions, and talks often reveals why justices rule as they do.
Yet in the era of 280 characters and inflammatory sound bites, nuance withers. This trend shows no signs of receding. And with the current “conservative” makeup of the court, in conjunction with another two years of Republican appointments, Democrats have an incentives to criticize Republican-appointed judges. Republicans saw success in 2016 by campaigning on the promise of confirming conservative judges and will likely use similar rhetoric in the future. When the political winds shift and Democrats next seize the White House, positions may reverse but the game will stay the same.
Anthony Marcum is a research associate with the R Street Institute’s Governance Project. Shoshana Weissmann is the digital media specialist and a fellow at R Street.
