For the last few decades, certainly since President Reagan’s nomination of Robert Bork, the nomination and confirmation process of Supreme Court and lower Federal court justices has been political theater. It was not always so.
Chief Justice Roberts stated in a recent talk reported in The New York Times that earlier in the 20th century “The Court was not regarded as such a partisan football. A lot of nominations of this time were Republican presidents appointing Democrats and vice versa. The Court wasn’t regarded as a place where partisan matters would be worked out.”
And so it should be. Not that partisan matters shouldn’t come before or be considered by the Supreme Court. But they shouldn’t be decided on a partisan basis. The only proper question is whether or not they violate the Constitution, and that should be a strictly legal question, not a partisan one.
In front of many courthouses there is a statue of Justice, a blind-folded woman holding the scales of justice. Since the 15th century, she has been blind-folded because of the belief that to be “justice,” a decision must be without regard to who is being judged or who the victim or other party is. Justice must be impartial.
But what does that mean? Is it just a matter of it making no difference, for example, if someone is rich and powerful as opposed to poor and weak? Or whether someone is black or white?
Not quite. It must go deeper because for that to truly occur it means that justice must be blind in the sense that those meting it out must be blind to their biases, their attitudes … everything but the facts. That is the essence. Political and personal attitudes must be left at the door. Only then can a judicial decision truly be made without regard to who the parties are; only then is justice impartial.
For example, in a case which pits corporate rights against the individual, being pro-business should not impact the decision. In a case involving abortion-rights opponents against women’s choice proponents, siding with one side or the other emotionally or intellectually should not impact the decision. The same is true for any case that pits parties on opposite sides of an ideological divide against each other.
The reader may respond that what I’m suggesting, nay demanding, is not possible. It is indeed difficult for someone to put aside their biases and attitudes when they have the opportunity to further them. But when one is a judge, I believe one must. Otherwise, the justice handed down is not impartial. And if it’s not impartial, it’s not just flawed, it isn’t justice.
It is in the legislative branch of government where biases and attitudes have a legitimate role. We live in a representative democracy and representatives should as a general rule speak on behalf of their constituents, which means representing their biases and attitudes. Yes, representatives are supposed to act in the best interest of the country (or state or city), but what that “best interest” is interpreted to be is inseparable from biases and attitudes. It’s the nature of the beast. And majority rules.
But the judicial branch is another matter. Its role is to objectively interpret the meaning of laws, apply laws to individual cases, and decide if laws violate the Constitution. Objectivity requires impartiality … both as to who the parties are and what they stand for, as well as in the law’s interpretation. If the law is unclear as written, judges can look to the history of legislation or the history of the Constitution to decide how to interpret it, but not to their own political and social (as opposed to legal) biases and attitudes. They are always interpreting, not rewriting, the law.
The Supreme Court is often criticized by Conservatives for what they term “judicial activism,” which they claim is rewriting the Constitution. Funny, though, that phrase is used by the Right exclusively when criticizing a liberal decision by the Court. When the Court does the same but leans to a conservative interpretation, that term is not applied.
But the term “judicial activism” as criticism is bogus. Legitimate activism is inherent when interpreting the Constitution. It was written in the 18th century. The founders had their philosophies and attitudes, revealed in the basic principles stated in the document, especially the Bill of Rights, but they knew they could not foresee how society and enterprise would be transformed over the centuries. They wrote a document for the ages, and that necessarily requires that broad concepts be applied to situations never envisioned.
As an aside, I want to make clear my view that there are both liberal and conservative elements in the Constitution’s language. The creation of this country and its founding documents was a working out of the tension between these two views of government. The result was a grand compromise. The Constitution may be a profoundly liberal document overall, but it has its conservative aspects. There is no denying that.
Often when dealing with the Constitution, looking at the language and contemporary documents while helpful still leaves the question open of how it should be applied to modern circumstance. To answer this question, the Court has taken cognizance of society’s current attitudes - sometimes explicitly, sometimes not - in determining its proper application. This is quite different from justices interjecting their own attitudes and biases. Referring to contemporary societal attitudes is more like asking what the founders would say in the current context. This process does not disturb impartiality.
Let’s take two famous cases of activism as examples. In Brown v Board of Education, the Court overturned its earlier decisions that separate education was equal and declared that separate education was inherently unequal. What brought about this changed interpretation?
When Plessy v Ferguson was decided in 1896 and supported state-sponsored segregation (in this case of railroad cars), society was not ready for integration. The Court, applying contemporary standards, stated that the 14th Amendment “could not have been intended to enforce social, as distinguished from political, equality or a commingling of the two races unsatisfactory to either.”
And so they interpreted “equal protection of the law” quite narrowly and upheld the stated intent of Louisiana’s segregation statute as providing equal but separate accommodations. The Supreme Court, always wary of being too far in front of public opinion, conscious that they are not a legislative body, prefers to step lightly.
But the world and our society was at a different place in 1954 when Brown was decided. Blacks were generations removed from being former slaves. They were a part of society in a way that they weren’t in 1896. While the South was still not ready for integration, the rest of the country had moved forward.
And so the Court struck down segregation as being inherently unequal. It wasn’t just a question of how much money was spent or the quality of education. The very concept of the government separating the races in providing education flew in the face of the 14th Amendment’s guarantee of equal protection of the laws.
The point I’m making is that because society had changed, the interpretation of the meaning of the Constitution required a change. The Court may in fact have been more liberal in 1954 than in 1896, but looking at the case objectively, they came to the correct decision.
Many people, especially in the South, were outraged at the decision and felt that their State’s rights had been trampled. This decision was perhaps the first decision where the Court was viewed by many as stepping into the partisan arena, the issue of race clearly being a highly charged social issue.
But it is the task of the Supreme Court to decide whether a Federal or state law violates the Constitution. The fact that it happens to involve a highly charged area of social, as opposed to political, life does not remove it from the jurisdiction of the Court. Society had changed in the intervening six decades since Plessy and so the Court in Brown properly came to its decision.
The other case I would cite is Citizens United v FEC, the case that declared that corporations are “people” to whom the 1st Amendment of the Constitution applies. Thus their, and other organizations such as labor unions, right of free speech meant that they couldn’t be prohibited from spending money to influence elections through “independent” advertising in the 90-day period preceding an election.
There was no legal precedent nor contemporary documentation to support the decision that the right of free speech applies not just to individuals but to organizations. Nor was this a question of society having changed in a way which required a change in interpretation. Corporations had not become weak entities that needed free speech to protect themselves.
And mind you, the law that was struck down did not say that corporations couldn’t spend any money on issue ads; it just said that in the 90-day period prior to an election they couldn’t run ads that mentioned a candidate. There was a rational fear that a deluge of corporate money into advertising during the period could easily tilt an election. Corporations and organizations, after all, do not have the right to vote, and so they should not have the right to unduly influence elections.
But the Court now had a distinctly Conservative majority on issues pertaining to business. They said that free speech was so important to our democracy that corporations should have that Constitutional right, regardless the lack of precedent, and so they struck down the law.
This was a clear instance of the justices substituting their political judgment for that of Congress and also rewriting the Constitution. This was the opposite of impartial justice. This was judicial activism that deserved to be criticized.
The American Bar Association Model Code of Judicial Conduct states in Canon 2.4 (b) that, “A judge shall not permit family, social, political, financial, or other interests or relationships to influence the judge’s judicial conduct or judgment.” That’s close to what I’m saying in this post although I think that “interests” is more narrow, more circumscribed, than “attitudes and biases.”
The actual Federal Code of Judicial Conduct, however, is unfortunately less helpful on this point; it also doesn’t apply to the Supreme Court. It states that, “A judge … should not be swayed by partisan interests, public clamor, or fear of criticism.” It further states that a judge should disqualify himself when he “has a personal bias or prejudice concerning a party.” Advisory opinions regarding the Code all seem to deal with external evidence of perceived partiality … connections to groups or individuals … rather than actual partiality of a judge.
But if a judge’s membership in an association that takes public positions on controversial topics would raise questions regarding his impartiality, then it follows that his private biases and attitudes on such matters should not be brought to bear on a case because it would disturb his impartiality. I would urge that the point be stated unambiguously in all Codes of Judicial Conduct that judges must not apply their personal or political biases and attitudes to the cases before them. Only then will impartial justice truly prevail.
Finally, I come back to the initial point I made in this post regarding the selection of judges. If we want our judges to judge impartially, then how they are selected is of utmost importance. Judges should be appointed for their neutrality, for their objectivity, not for their record of either being liberal or conservative.
There are existing models for this. At the state level, many judges are now appointed by non-partisan commissions using a merit selection plan. Observers have long argued that this should be true for all state judges.
I would argue this should be true for all judges, regardless whether state or Federal. A list of several candidates should be selected by non-partisan commissions, with the actual appointment then being made by the President/Governor.
The idea behind lifetime appointments for Federal judges was to remove them from the pressure of politics, which in one sense it certainly has. But it hasn’t removed politics from the judicial process. If a judge takes his political leanings with him on to the bench, he or she will apply political as well as personal biases and attitudes in rendering decisions, making them examples of partiality, not impartiality. Both the way judges are selected and the Codes of Judicial Conduct must be changed.
