Impartial judges?
Autenrieth Road
Shipmate
I used to think in court cases about interpretation of law or constitutional issues, that (a) there was a single correct answer and (b) judges were impartially trying to find that answer. (I’m in the US.)
I know. Color me naive.
Over the past couple of years, I’ve started to doubt both (a) and (b). It makes me see judges’ decisions as deeply political. Not necessarily in a bad way, but at the least as thinking it’s completely baked into the human condition in a perhaps unavoidable way.
Today I read this article: We Were Clerks at the Supreme Court. Its Legitimacy Is Now in Question. and I think: only now in question? The nomination process has been massively politicized at least since Merrick Garland’s nomination was blocked, and perhaps/probably since forever (it’s only since Garland that I’ve been paying close attention).
My current hypothesis is that every Supreme Court decision (and those in lower courts) has failed both (a) and (b) since the founding of my country.
What do you think? Are (a) or (b) possible? Desirable? What should we aim for if they’re not possible? How should judges make their decisions? How should judges be chosen?
I know. Color me naive.
Over the past couple of years, I’ve started to doubt both (a) and (b). It makes me see judges’ decisions as deeply political. Not necessarily in a bad way, but at the least as thinking it’s completely baked into the human condition in a perhaps unavoidable way.
Today I read this article: We Were Clerks at the Supreme Court. Its Legitimacy Is Now in Question. and I think: only now in question? The nomination process has been massively politicized at least since Merrick Garland’s nomination was blocked, and perhaps/probably since forever (it’s only since Garland that I’ve been paying close attention).
My current hypothesis is that every Supreme Court decision (and those in lower courts) has failed both (a) and (b) since the founding of my country.
What do you think? Are (a) or (b) possible? Desirable? What should we aim for if they’re not possible? How should judges make their decisions? How should judges be chosen?
Comments
I'm going to sit with this a bit. My feeling is that moderate liberals are likely to accept Judge Barrett because they are institutionalists. My concern is that Republicans won't accept an expansion.
However, in 2005 the Democrats were using the filibuster to hold back some of Bush's nominees. A Gang of 14 Senators (Seven Democrats and Seven Republicans) got us beyond the filibuster. Later the majority party started to use the nuclear option to get its favored justices confirmed.
As I understand it, Joe wants to set up a commission to try to restore balance to the court. One of the options being considered is ending the lifetime appointment to the court, like limiting the term of a justice to 18 years. A number of the current justices have already served more than 18 years.
For many years now, and speaking only of my State, all judges must retire at 72; they may be appointed as acting judges until age 75. I don't know about other States. Originally, judges of the Federal courts here had a lifetime appointment. That was altered by constitutional amendment in 1977 to introduce an age limit of 70. Given the age at which most judges are appointed, these limits equate roughly to your 18 years.
Justice McTiernan of the High Court was only 38 when he was appointed; he retired after serving 46 years, a record which is very, very unlikely now to be exceeded. Justice Edelman was only 43 when he was appointed to the High Court, but by then had been a judge of the Federal Court for a bit under 2 years, and of the Supreme Court of Western Australia 4 years before that, after a brief but distinguished academic career. Not many people have that sort of ability. Why do you consider that he should retire after 18 years, and what work could or should he do were he to be compelled to leave the Bench so early?
In my time as a lawyer, which finished in 2000, I mostly dealt with cases involving employment, with some exposure to civil litigation, all in Australia. Most of my time was spent negotiating, with the lawyers all aware of what the law said, and mostly arguing about what the facts were.
In most situations, cases don't turn on questions of law at all. The law is clear, and its the facts that need to be determined, by the production and weighing of evidence bought before the Court complying with a set of rules. So a Judge's time is mostly concerned with trying to establish the facts. Applying the law is the easy bit.
Cases that get to the highest court in the land though are usually different. They often involve controversial areas where the law is not clear. That means almost by definition that there is not a single correct answer. Legislation might be difficult to interpret in the fact situation before the Court. New situations might have arisen because of technology changes that the legislature never envisioned. Before the highest court in the land, a party might want to argue that a previously determined case was wrongly decided.
So (a) above is almost never the case when we are talking about our High Court or your Supreme Court (noting that the two bodies are not at all the same).
Supreme Court judges are, however much conservatives in the Heritage Foundation might wish it to be so, impartial (I mean that right wing Christian organisation who gives Trump their approved list of judges). Really, impartial isn't the right word. I think you probably mean apolitical, that they don't apply their political views to decisions. Impartiality as between the parties before them is an absolute given. To not be impartial is to commit a grave ethical breach. The correct step in those situations where a Judge cannot be impartial is not to hear the case. A judge who hears a case must also ignore the wishes of the President who nominated them or indeed anybody else when making a decision. A failure to do that is also a serious ethical breach. When Amy Ferrer Fowler (can't resist, sorry) says that she tries not to let her own personal convictions influence her decisions as a Judge, I believe her.
When I was a lawyer, I so wanted a particular area of employment law concerning damages for breach of contract to develop in a certain way. I looked for fact situations where I could see that was a possibility. I wanted it because I wanted to use a certain mutual duty of employers and employees to be used by employees to get just compensation for unfair treatment. It was a political view of mine that employees should have more power in the employment relationship. For a few years, this was a possibility, but lawyers who represented employers knew it too. So I was able to use that uncertainty to negotiate good settlements for my clients. But I have heard, down the track, that the case law has now effectively put an end to my preferred line of reasoning. Bummer.
So that's how my politics influenced my practice as a lawyer (note that I knew what lawyers on the other side would do because I also acted for employers). I might push my client a bit harder to go to trial if the facts were good and the other side wasn't coming up with the dosh. But that never happened. The boss always coughed up. Nobody wants to be a test case, unless they are an idiot. Oh to have an idiot client with bags of money to fund an experimental trial!!!!! Oh to make sure you have warned that client over and over again in writing that they are taking a massive risk!
I imagine its the same for Judges. You have a particular approach to interpreting the law, one that is by no means yours alone but is grounded in the case law and legal theory. But just because Amy Ferrer Fowler thinks that a particular decision in the case will lead to a preferred outcome does not mean that she will make that decision. Her judgement has to hang together. Its like a jigsaw puzzle where the pieces are, I imagine, the Constitution, the facts under consideration, the relevant legislation and relevant previous decisions of the Court. If she can't arrange those pieces to fit together, she can't make her preferred decision.
The above is how someone like me would make a judicial decision, someone who is an inherently political person and who wants to use the law to advance their agenda. I'm not sure if Barrett fits that mold. I'm not sure if any of your Supreme Court judges do. You would need to be an expert, a close follower of the Court who reads all their decisions to make that call. My wife, for example, is not a 'political' lawyer, although there is less scope for that in her field. She will advocate for law reform, but not through cases. Nobody wants a matter to go to trial in family law.
In my experience, lawyers who hanker after change, like me, are often the ones who burn out (raises hand) either because they become disillusioned with the potential for change, or the contradiction between their politics or moral code and what they are doing professionally causes them to break down (raises hand). Political lawyers often end up in politics. Its the people who are in love with the law as a process, as a way of thinking, as a discipline, who become judges. This is talking in generalities. Sometimes, people who have been active in politics are appointed to our High Court.
I don't believe it when people look at the Court and count numbers like they are trying to get something through Congress. Lawyers have to make guesses as to which way a case might go, and those who specialise in appearing before the Supreme Court will know how to frame their positions to appeal to each of the Judges on the bench. But its not counting numbers. Its not about saying that there are three conservatives and four liberals so the conservative position will win.
When lawyers fight about the law, they fight over what the law is, or where it might be going. They fight these things hard. I have seen a couple of serious long-running rows over interpretation, one in particular resulting in a partner leaving the firm (he ended up hating the other guy's guts). The fight was over which 'line' the firm should take in giving advice in a particular situation.
But to be impartial in the sense of political outlook is as your post suggests, very difficult. The people who make it and are appointed by Trump have gone through an ideological filter. But their willingness to apply that filter to their decisions as judges is probably limited, and their capacity to do that is limited by process and history. Again, you would have to make a serious study of their decisions to determine if they walk the originalist talk, but they are going to place a premium on the method of making a judicial decision.
I'm not sure how accurate that is as a characterization of the US Supreme Court's constitutional jurisprudence. There have been some surprises, but there are a number of justices whose jurisprudence has fairly predictably reflected the politics of the party that appointed them in a number of high-profile cases.
I think that's part of the idea behind term limits - essentially, to limit the lifespan of the political effect of partisan appointments to the Court. I'm not sure I would call that a good solution, but it may be less bad than some other solutions that are floating around.
The Canadian Supreme Court has not been entirely free of predictable political polarizations at various times on various issues, but I think it's fair to say that it's never been as politically polarized as the SCOTUS.
And yet the entire USA body politic seems to think that the politics of Supreme Court Justices matter.
I do accept that both American political parties are in the habit of using Supreme Court appointments to motivate their bases. This has a huge effect upon the narrative around the Court. As the NYT article points out, the partisan actions of the Republicans in particular has had a deleterious effect on the credibility of the Court. That's to be abhorred.
But the public perception and the politicking by politicians and the American media is completely different to the question of whether the Judges put politics before the integrity of their decisions.
For completeness, I'm not American either and so have no more of a ringside seat than @Simon Toad does. But it seems to me that this is a question that is actually testable: my impression from the media is that when the Supreme Court makes a judgement, it's stated which justices agree with it (and if there's a dissenting opinion, who it is that dissents). So someone should be able to go through this information, and see whether there's a pattern - that is, are some justices reliably liberal in how they interpret the law, and others reliably conservative?
If there is, then I (and what seems to be the whole of the USA) am right. If there isn't, then Simon is.
Which tells you a lot about the difference between here and the USA. The political lens/angle on judicial appointments, and the focus on specific cases or issues, just isn't present most of the time here. Occasionally a particular judge will be seen to be relatively conservative or relatively liberal, but in recent decades it's been very rare to get any sense that a political party is trying particularly hard to shape the direction of the court. Not least because there is a fair amount of past evidence of such attempts not working very well in this country anyway.
And it most certainly is not a political issue in the sense of trying to motivate a party's base. Most of the Australian public would be bored witless by a discussion about who is going to be the next High Court judge.
"whether the Judges put politics before the integrity of their decisions. "
My perception is that this is already clear to general understanding. The American supreme court is perceived as politically dominated and the judges not independent of politics. Perception is truth in this era.
Oh for sure. I make mention of that in my "essay". But you need a pretty good understanding of the Supreme Court to make that call. Someone like the woman who does the Supreme Court commentary on PBS Newshour would be the ticket.
As @orfeo and @Simon Toad have said I think generally cases that make their way all the way to the highest court are generally cases where reasonable people can disagree (and, often, where lower appellate courts have disagreed). There are some cases where one position looks much more likely to be correct than the other but there are other cases where the Court is genuinely being asked to break new ground and basically make new law.
By way of an example: An issue that was controversial in Canada in the 1990s was whether sexual orientation should be a recognized ground of discrimination, and if so, what the implications of that should be. (It wasn't originally listed as a ground when the Charter was enacted in 1982, but the wording of the equality provision makes it clear that the listed grounds are not intended to be exhaustive.) In 1999 the Supreme Court of Canada (SCC) held that the Charter's equality provisions protect not only gay and lesbian people as individuals but also same-sex relationships, and it was only a short step from that to constitutional protection for gay marriage. However, I think it's clear that such a result would have been unthinkable in the early 1970s, before the APA removed homosexuality from the DSM. The Charter's equality provisions provided a framework for recognizing gay rights but it didn't operate in a vacuum.
How should judges decide these issues? I have no idea how the SCC actually landed where it did on the sexual orientation issue, but these strike me as some relevant considerations: (1) there is a deliberately open-ended equality provision in the Charter and it exists for good reasons; (2) sexual orientation was not among the prohibited grounds of discrimination initially listed in the equality provision of the Charter when it became law in 1982, so adding sexual orientation would breaking new ground and taking something that was previously subject to the democratic process away from that process; (3) we live in a democracy and we believe that issues where reasonable people can disagree should be left as much as possible to the democratic process; but (4) the expert consensus about sexual orientation increasingly describes it in a way that makes it look like precisely the sort of thing that equality provisions in constitutional documents are designed to protect from the vagaries of the democratic process. The more confident the court is about (4), the more likely it's going to weigh consideration (1) above considerations (2) and (3).
When it comes to choosing judges, I think ideally you want people who will go through the process of weighing these kinds of competing considerations with an open mind. A judge is inevitably going to bring their own views to the task of judging, and they may well influence where the judge lands on a close call, but they shouldn't dictate the result from the outset.
It's a commonplace naïveté. John Roberts leaned heavily (and dishonestly) on this misconception during his confirmation hearings, promising to be a neutral umpire who would simply call "balls and strikes"*. The problem is that any cases which make it through the appeals process to the Supreme Court are, pretty much by definition, not settled matters of black letter law (as others have already pointed out). There are going to be (at least!) two plausible statutory or Constitutional interpretations and will almost certainly have political implications.
It's understandable that ordinary citizens might not appreciate these facts. It's less understandable that U.S. Senators wouldn't, but it's very understandable why they'd pretend not to.
Republican-appointed justices have held a majority on the U.S. Supreme Court since June 23, 1969. Lyndon Johnson's failed attempt to elevate Abe Fortas to Chief Justice in 1968 (and Fortas' subsequent resignation) was an unrecognized turning point in American history in many ways.
* A baseball metaphor, for those reading this from outside the U.S.
What The Supreme Court’s Unusually Big Jump To The Right Might Look Like
I don't see any reason to think that a highly partisan selection process should be expected to magically produce non-partisan justices.
Mealy-mouthed bullshit. Right now, those who perceive bias in the SCOTUS justices are perceiving truth.
https://nationalpost.com/news/canada/why-unlike-some-people-canadians-dont-lose-their-minds-over-supreme-court-appointments
Come to think of it, I know of no other country other than the United States where originalism is seriously entertained as a viable constitutional theory.
You have in different countries with judicial review a debate about how the court goes in terms of striking down legislation passed by the elected representatives. The binary between 'judicial restraint' and 'judicial activism' can be somewhat useful, even in reality, even justices who profess judicial restraint does not necessarily think the legislature can do whatever they want.
I used a jigsaw analogy to describe the process of judicial decision making, but that tends to the idea that their is one correct answer. Rather, it's like putting together a set of patterned tiles which look different depending on your arrangements. That's my wife's contribution.
I also don't really know what originalist means, like, if it is a more complicated theory than the few lines given by Anglican Brat above. We call some judges "black letter lawyers" which very broadly means: just show me the text. But there are rules of interpretation that you learn at University (and then forget if you are like me), just like rules of evidence. But if things were clear cut, you wouldn't get split decisions...
Oh, the proper place to make law is the legislature, btw. But they screw it up so often (no disrespect to the drafters intended). Plus, I really don't think we would have proper land rights if it wasn't for the High Court in Mabo.
I'm going to read that article now Dave.
Oh man...
From the article:
From the study they linked at note 1. above:
This stuff makes me want to scream and tear my hair out. I can't tell you how much I loathe these sorts of analyses. I'm sorry, I stopped reading after that. If I was king of the world I would execute all statisticians. We might never get to Mars, but the world would be a much better place for people like me and Donald Trump. You know, the bullshit artists.
It's all to varying degrees, too. I still have a fair amount of respect for the Constitution and other founding documents. I think the Founding Guys did a pretty good job putting it all together, given their many personal flaws, the times, etc.
They should've had more sense than to focus on White, Male, Property Owners. They should've stopped slavery, then and there. (Though, AIUI, there was quite an argument about it. Even some of the slave-owners wanted to outlaw it.) Indentured servitude should've been stopped, too. They should've listened to Abigail Adams' "Remember the ladies, John". I don't remember what, if anything, they wrote about the indigenous people of America. There was some respect for them, and IIRC some of the founding ideas were based on some indigenous community practices. (E.g., the Iroquois Confederacy's "unwritten constitution".) But the guys may well have messed up there, too. Etc.
So when people deal with anything about our founding, what the founders did, etc., it's steeped in our country's self-mythology.
FWIW.
ISTM that the conservative bias that informs both is that things only get worse with time. This is an age-old view -- the Greeks thought that there was a golden age in their past, and they could never live up to that bygone time. Indeed, it was axiomatic in Greek philosophy that change was another name for decay. Modern liberalism has quite the opposite view -- that we can and should leave the world a better place than we found it.
Given that dichotomy, the attraction of "originalism" (a truly vapid notion to my mind) would be attractive to those of conservative bent -- although it is still indefensible. And it is bizarre as a judicial philosophy of the Constitution -- the SCOTUS was not seen as having the right to overturn the laws of the elected branches on Constitutional grounds for the first dozen years or so of our existence, and it is certainly not an enumerated power from the Constitution. It was finessed by Marshall during Jefferson's Presidency, and was only possible because he declared that Jefferson was right, so Jefferson could not refuse to accept the SCOTUS ruling. It's just flabbergasting that SCOTUS justices would claim to be originalists and yet feel free to overturn duly-enacted laws of the US.
"Originalism" is the idea that the original meaning of a law (or the Constitution) is the only valid one. There are several different flavors depending on whether the guiding standard is original application, original understood meaning, original intent, or simply the original text. This last one is closely related to what is referred to in American legal circles as "textualism" (which may be related to what you call "black letter lawyers"), which holds that only the actual text of a statute matters, regardless of the intent of the authors or the expected application or original implementation.
The biggest problem with originalism is that it's essentially a scam. Blogger publius explains:
In short, the originalist will climb up and down "orginalism's laddert" to choose the desired degree of abstraction necessary to achieve the desired outcome.
I think an even bigger part of the problem is that the degree the U.S. Constitutional order was restructured by the Civil War Amendments is greatly underappreciated by those who venerate the U.S. Constitution. The big problem with the U.S. Constitution as it existed in 1789 (or 1791 if you want to include the Bill of Rights) is that it failed. Madison's Constitution contained within it the fault lines that would fracture the country in the 1860s. The big problem with originalism (aside from the problem of originalism's ladder) is that it concentrates on an "original" Constitution that's too much powdered wig and knee breeches and not enough beard and stovepipe hat.
If so I wish you were not.
When one says "perception is truth" the take-away is, "you don't care what's really true; you take as true what you think you see."
I understand the US system, like the UK, makes use of binding precedent. I thought that precedent means that when a sufficiently high court makes a ruling on an open question of law, that question ceases to be open and the high court's ruling* is the answer. If you don't like the court's reasoning, then tough, the answer they have come to is now the right one, simply because it is the one they have come to.
E.g. until last year it was debatable whether the Queen was allowed to prorogue Parliament in the way requested by Mr Johnson. Now we know the answer: she wasn't. And even if you think the Supreme Court is a bunch of bitter Remoaners, she still isn't, and neither will her successors, unless Parliament passes a law that gives her the right.
So what does it mean for Rode vs Wade to be overturned? Would that not imply that the previous ruling was not binding, and if so, what is the point of it?
* 'High court' in the generic sense of 'court that is high'. Not the court that is called The High Court.
Here (England and Wales) although a few of the cases that get to the Supreme Court (formerly House of Lords) have political implications and so get a higher public profile, most of its business doesn't but is with cases that are unclear or are financially important enough to a litigant that he or she is prepared to shell out enough money to take it there.
Taking @Simon Toad's point, cases don't get there, though, is the dispute is about facts rather than law.
When it comes to Biblical hermeneutics, the first thing I learned was when it comes to text, there are two questions
1) What does this text mean?
2) How do we apply this text today?
The answer to question 1 is not necessarily the same as answering question 2, especially if one utilizes historical criticism in which case question 1 is rephrased as "what does this text mean to the (1) author, and (2) to his/her immediate audience"
I don't know much about legal interpretation, but in terms of Biblical and literary interpretation, the perennial debate is between those who insist on the primacy of authorial intent, and those who follow Michel Foucault in asserting that the author is dead and buried and contemporary readers are not under any obligation to follow the author.
So in terms of the Constitution in US discourse, the question is: Are the Founders dead and buried?
They don't have to take all cases, and they don't always explain why they don't take a case.
I'm sure the law geeks
(And robust thanks to our law geeks!
There are a few appeals as of right to the Canadian Supreme Court (mostly in criminal matters where there was disagreement on a point of law in the court(s) below), but for most classes of cases the SCC will only hear an appeal with leave. That said, chances are pretty good that the SCC will eventually grant leave in an appropriate case when the constitutionality of legislation is at issue. The test is whether there is an issue of law is one of “national importance”. Leave is always granted or denied without reasons.
AIUI the US Supreme Court has a similar leave requirement for most cases, referred to as granting or denying certiorari.
The underlying premise of the American government is that it is not infallible. It's allowed to admit that it made a mistake. Even the Constitution is not considered infallible, hence the ability to make amendments. When the U.S. Supreme Court reverses itself it's basically saying "this previous court was wrong, and here's why".
No, purely statutory cases are accepted by the Supreme Court as well. For example, Ledbetter v. Goodyear involved interpreting the applicability of a statute against gender discrimination. Because it was a purely statutory ruling Congress was able to "overturn" the Supreme Court by re-writing the statute in a way that suited its preferences better.
Because it's an independent branch of the U.S. government the Supreme Court only accepts the cases it wants to accept. Or, more specifically, it accepts the cases at least four of the current justice want to accept. That's the number required to grant certiorari.
geez GK, chillax will you? There's no need to be cross.
Appeals have had a complex history, with some lying as of right, some needing leave and yet others needing special leave. These days, appeals from inferior courts need special leave. Usually applications for special leave are determined by 2 Justices in chambers. Some are referred to the Court to decide whether that should be granted, but more often than not, it is refused in chambers. Questions taken into account in deciding whether to grant special leave include an estimate of prospects of success, whether there is a conflict of authority in lower courts that needs resolution, and the overall importance of the case. If you want to go further into it, look up Austlii and go to the boards dealing with Special Leave Dispositions and Transcripts. I'm afraid that I can't remember whether leave or special leave (or neither) is required to appeal to the Full Court from a decision of a single Justice on a matter within the original jurisdiction.