Sunday, July 17, 2016

Justices, Like Any Other Judges, Should Not Be Partisans: a Response to Eric Segall

By Steve Sanders 

[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 CourtĂ­s 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.


Joe said...

"But surely this overstates the degree of freedom the Justices actually have."

The word "overstates" is basically my sentiment to ES' arguments on the subject overall including the (to me, simply put, silly) idea that justices are not judges.

Cornelius Ogunsalu said...

You guys overstate and exaggerate everything about Justice RBG's recent comments about Trump . . . Could it be as simple as an 83 year old woman who has seen it all; sacrificed her life for America for decades: who just want to speak her mind [publicly] for once on a person who will bring [ruin] and [destruction] to America . . . including the haloed hall of justice in which she sits? She is no different from any other 83 year old grandma who is looking forward to joining her ancestors and expressed and shared her wisdom. SIMPLE as that and you highfalutin lawyers have written theses and books over something so SIMPLE! Put a lid on it and move on to more productive legal analyses and issues . . . address WHY racism is still well and alive in American and think deeply about HOW Americans [especially] white Americans like you, will finally admit [you] are also part of the problem and part of the solution of racism in America. Notorious RBG's utterances [directly] addresses that!!!

Shag from Brookline said...

Apparently "friends" in the legal academic community will continue to challenge each other on what Justice Ginsburg regretted she misspoke for weeks or months to come. Then perhaps an edited book of such articles can be prepared comparing, contrasting the views of these legal scholars. Hopefully such a volume would include what Ginsburg actually said that are the subjects of these quarrels among friends. Then those of us less scholarly might guess the political leanings of such scholars as perhaps showing their political biases. Also, such an edited volume might contrast what other Justices have said over the years, including the late Justice Scalia, that might suggest to some of us less scholarly just how politically awful Ginsburg's words are and perhaps disclose the gender views of these legal scholars. Some might think Ginsburg's words are a molehill compared to Scalia's Mt. Etna; and whose words are more accurate? Recall the late Finley Peter Dunne's Mr. Dooley's opining that the Supreme Court follows the election results. Of course, that was before originalism came about in the latter part of the 20th century, and the Court in Bush v. Gore (5-4, 2000) determined the election results in that year. Scalia told critics "Get over it." Those words make more sense regarding what Ginsburg actually said. And compare what the Court's decision in 2000 gave us in the 8 years of Bush/Cheney that continue to roil America and the world today.

Shag from Brookline said...

Paul Waldman has an interesting non-legal academic view at:

titled: "Why Ruth Bader Ginsburg was right about Trump (Opnion)".