Monday, November 26, 2018

Ideology, Partisanship, and the Wrong Questions

By Eric Segall

Last week the President of the United States once again accused federal judges of being partisan, and the Chief Justice of the United States responded by stressing the need for an independent judiciary. This exchange prompted legal scholars throughout the land to take numerous positions on the role of ideology and partisanship in judicial decisions, focusing mostly on our highest Court (even though Trump was referring to a district court judge). Most agreed that the Court should try hard not to be partisan or ideological but also stressed that, given the nature of the cases the Court hears, the open spaces of constitutional interpretation, and our overly politicized confirmation process, these are noble aspirations more often violated than achieved. I argue below that, when it comes to the Supreme Court, everyone is asking the wrong questions.

Today our highest Court is staffed with five Republicans, all of whom are substantially more conservative than the four Democrats. This polarized state of affairs, an historical aberration, may well portend the future. But it is unlikely that this political divide will define the Court across all areas of constitutional law. First, Chief Justice Roberts may well move to the center to avoid the appearance of the Court being a purely partisan political institution, as many think he did when he voted to upheld the Affordable Care Act. Second, on issues of criminal procedure, statutory interpretation, and perhaps judicial aggression against federal economic regulation, the Court may not divide along partisan lines. Only time will tell.

While the Court has not traditionally been divided along Republican/Conservative versus Democratic/Liberal lines, nor along easily definable ideological lines, it has always been true that the Court's reliance on text and history to make its decisions has been minimal at best. The truly important  questions concerning the Court, that will exist no matter its political or ideological makeup, are whether the Court takes prior law seriously enough to distinguish it from an institution that makes all things considered decisions, and whether this hybrid legal-political institution should wield the power and influence that it does over so many issues central to how we define ourselves as a country.

Over the last 100 years, the Court has imposed its will on a huge number of difficult policy decisions even where text and history did not obviously call for the Court to overrule more accountable governmental officials. The Court at one time or another has invalidated laws pertaining to minimum wages, overtime rules, child labor, school segregation, abortion, affirmative action, campaign finance reform, gay rights/same-sex marriage, how states carve up voting districts, pure commercial speech, aid to religious schools, religious symbols on government property, speech rules in schools and government offices, and on and on and on. Reasonable people can disagree over whether most of the laws the Court struck down were unconstitutional absent a presumption of validity. But that assumes the Court should be second guessing policy judgments even where reasonable people can disagree over their validity. That system of judicial review is not what the framers intended, and is a highly questionable way to run a country.

If you follow this blog, you know my opinion on what role prior positive law plays in Supreme Court decisions--almost none. If I'm right, then most of the traditional reasons we allow judges to overturn laws can't support our current practice. Most people assume that we have judicial review because the Constitution limits what elected officials are allowed to do and if they exceed those limits, then the Court should step in. The premise of that argument is that the Constitution sets forth binding rules of law that judges can reasonably enforce in addition to precedent being a constraint on judicial-decision-making. But, as I've argued many times before, if the Constitution's text (the parts that get litigated) is too vague to count as law in the normal sense, and if the Court is not bound by precedent (it isn't), then what the Court is doing isn't interpreting law. If the Court isn't interpreting law, then why would we give these unelected, life-tenured judges so much power over us?

Now, maybe I'm wrong. Perhaps, the Court is law-like enough to justify its substantial intrusion into the many areas of social, political, economic, and educational policy listed above. But that argument needs to be made, not assumed. The real issue is not whether the Court is too partisan or too ideological but whether it is a court of law at all. One thing is certain: there is no institution in the world like our Supreme Court. The Justices have life tenure, they pick their own cases, they regularly interpret hopelessly vague text with contested histories from either 1787 or 1868, and they have a long tradition of striking down laws even when reasonable people can disagree over their validity.

Judicial review makes sense in a world where the Justices only invalidate legislation when there is clear error or in Hamilton's words in Federalist No. 78 an "irreconcilable variance" between a law and the Constitution, But that limit on judicial power does not accurately describe the current job description of the Supreme Court. The examples listed above, and the many, many changes in constitutional doctrine over the years depending on who sits on the Court, suggests that something other than text, history and precedent generates the Court's decisions. Whether that something else is partisanship, ideology broadly defined, morality, or other normative commitments doesn't matter if that something else is not law.

There are other chief executives and legislatures throughout the world similar to our own, but there are no other courts like the Supreme Court of the United States. Maybe it is time to start from ground zero and re-examine why we allow these "Justices" to exercise so much power over our daily lives.