[Steve Sanders is Associate Professor and Henry H.H. Remak Distinguished Scholar at the Indiana University Maurer School of Law.]
Thanks to Mike for allowing me the opportunity to reply to my friend Eric Segall's thoughtful post about Justice Ginsburg and Donald Trump.
In an essay last week for the Huffington Post, I argued that erasing the line between jurists and politicians would be a bad idea for progressives. In an era of gerrymandered right-wing domination of Congress and most state legislatures, we need a judiciary with the respect and authority to protect rights and liberties. Lower courts do much of this work. Justice Ginsburg's indiscretion, I suggested, endangered not only the Supreme Court but the legitimacy of an independent judiciary generally.
Eric is comfortable with Supreme Court Justices commenting on electoral politics. It is healthy, he says, for them to be "open and transparent about the reasons, all the reasons, for their decisions." Yet he does not suggest that lower-court judges should be allowed the same liberty. The Supreme Court, he holds, is sui generis. In this post, I want to suggest that, at least when it comes to jurists meddling in politics, the differences are not so great. The Justices should refrain from partisanship for the same reasons all other judges are expected to do so.
Eric asks, "Why do we have to formally pretend that the Justices don't have prior values which in cases they care about drive their decisions?" But the Justices are not unique in that regard. Most judges have prior values that influence their thinking.
Any appellate lawyer knows a "good panel" from a "bad panel." On many matters, a panel with a majority of judges like Stephen Reinhardt, Marcia Berzon, or Guido Calabresi is likely to deliver a different result than one dominated by the likes of Diarmaid O'Scannlain, Jeffrey Sutton, or Diane Sykes. Like Supreme Court Justices, many lower court judges bring political values to their work.
Moreover, some judges allow their own distinctive philosophies and policy thinking to shape their work. For example, just read Richard Posner's brutally rigorous take-down of Indiana and Wisconsin's laws against gay marriage (or, for that matter, any number of other Posner opinions). Richard Posner is a smart and interesting guy, and I think we'd all enjoy hearing his thoughts about Donald Trump. But I don't think Eric would deem that proper. (It is no answer to say that lower court judges are bound by the judicial code of conduct while Supreme Court Justices are not. We're debating here about principles, not technicalities.)
So why wouldn't it be democratically salubrious to free all federal jurists from the obligation not to engage in partisan advocacy -- or go even further and allow them to talk openly about cases -- since most have prior values that influence their decisions? The answer, of course, is that such a state of affairs would be unimaginable in our system. It would magnify and exaggerate the role that ideology plays in judicial decision making. It would be the end of any idea of a fair and impartial federal judiciary.
Why, then, should we expect less discipline from members of the Supreme Court? Eric argues the Supreme Court is different: "The Justices," he says, "are not bound by prior cases and are free to impose their values writ large as they see fit." But surely this overstates the degree of freedom the Justices actually have.
Yes, the Justices have the power to abandon stare decisis, but they rarely do. As David Strauss has argued, precedent and incrementalism are central to the common-law method of constitutional interpretation that best describes the Court's actual practice. Moreover, the Justices must explain their decisions in writing, using recognized tools of legal analysis, so their colleagues and the rest of us can evaluate and critique them. Yes, critics on both the left and right can cite egregious examples of "judicial activism," but it is well accepted that the Court rarely strays too far from what the public is ready to accept. And the Justices are constrained by the "rule of five" -- it takes a majority, after all, to do anything.
I admire and accept much of Eric's book-length examination of what makes the Supremes unique among courts (or, as he would say, not a court at all). But I cannot join him in making the leap that because so much of what they do involves making normative judgments about policy, the Justices are therefore entitled to be public partisans off the bench. To reason that the Supreme Court institutionally is already a "political" body, therefore the Justices individually are entitled to be "political" off the bench, seems to me a bit too simple.
It overlooks institutional and practical constraints that bind the Court but not the Justices as persons. It ignores the fact that sexy, ideologically charged cases are only a fraction of the Courtís work. It glosses over important times (e.g., the Chief Justice with Obamacare, Anthony Kennedy with affirmative action) when the Justices depart in their official capacities from the preferences we assume they hold in their individual capacities. It equates a breezy riff in a chat with a chummy journalist to highly consequential legal conclusions that emerge as the products of what we hope is a serious judicial and political philosophy.
When Justices want to explain their philosophies, they write books or give speeches. We already have opportunities to take their measure and understand their minds. It's simply that partisan advocacy has always been off limits.
And the game is not worth the candle. Admit it: we learned nothing useful or surprising about Justice Ginsburg's politics. We were merely titillated, while a few realist law professors -- along with some right-wing Court-haters -- felt a frisson of validation. The unplugged RBG did not mount an argument for Hillary Clinton or the merits of a Democratic executive branch. She merely observed that Donald Trump is a menace and a fraud, something that was already obvious to many people.
On the other side of the ledger is the damage done to public confidence in the role that judges -- all judges -- play in the constitutional scheme. Many of the people who question the legitimacy of the Supreme Court also resent the larger principle of a life-tenured judiciary that is insulated from political retribution. In short, the price of cheering on Justice Ginsburg's foray into punditry is just too great.
We all must separate our personal enthusiasms from our professional responsibilities. While I personally think it would be great fun to have members of the Supreme Court spend their weekends doing the McLaughlin Group, as a law professor and member of the bar I think that would be a very bad idea.