Can An Independent Judiciary Survive?

A federal judiciary independent of the political branches is essential to our constitutional democracy. However, forces on both the left and right threaten to undermine it to serve their political goals. Reducing judges to an extension of the political branches would ultimately destroy their credibility and effectiveness, a result that serves nobody’s interests. Judges should be judged not by political outcomes but by whether their decisions rest on sound legal principles—“conservative,” “liberal,” or otherwise.

The Nation’s founders regarded the judiciary as the “least dangerous” and “weakest” branch of the federal government in that it lacks any inherent power to enforce its will. Rather, its authority is wholly dependent on acceptance of its decisions by the other branches as well as the public. The founders also emphasized the importance of judicial independence from the political branches:

“[L]iberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments.”

An independent judiciary has never been more important than it is now as our democracy teeters near the brink. The awesome powers of the presidency rest in the hands of an individual who disdains democratic norms and the rule of law while a compliant Congress does his bidding. This leaves the federal judiciary as the only internal constraint on governmental abuse.

The potential threats to democracy will not end with Donald Trump and the current Congress. The vast powers of the executive branch remain at the disposal of future presidents who could also abuse them if so inclined. Congress, long in decline as an independent and coequal branch, will probably remain largely subservient when controlled by the president’s party. Even when political control is divided, no Congress in the foreseeable future is likely to hold the veto-proof majority necessary to fully rein in a rogue president.

Yet, the federal judiciary and particularly the Supreme Court face assaults from all sides that could undermine their ability to fulfill the role the founders entrusted to them and that is so vital in these fraught times. While the judiciary has survived past attacks, the current threats seem more severe in our polarized and ever more extreme political environment. The judiciary is the only branch of the federal government that continues to function mainly as the founders intended.^[1]See here and here. Ironically, this can be a vulnerability. The dysfunction of the executive and legislative branches forces the courts to take on controversial issues that the political branches fail to resolve through traditional political means, thereby making judges a heightened political target.

Both political parties have degraded the judicial appointment and confirmation process from the generally effective bipartisan regime that prevailed until fairly recently to the hyperpartisan mess it is today.^[2]See here and here. In addition to thoroughly politicizing judicial appointments, both parties and their ideological allies engage in extreme demagoguery over judicial decisions they disfavor. While judicial decisions are of course fair game for criticism, critics routinely skip over reasoned debate on their merits to challenge the integrity of the judges who decide them.

Since the Supreme Court’s majority became more conservative in recent years, critics on the left have taken to questioning its “legitimacy” and berating the justices as “political hacks.” Many assert that the justices are “in the tank” or a “rubber stamp” for Trump. They propose “reforms” that are thinly disguised attempts to restore liberal justices to the majority. Not to be outdone, Trump and others in his administration call for the impeachment of judges who rule against them and even defy them on occasion. Deputy Chief of Staff Stephen Miller accuses federal district court judges “as a class” of staging a “legal insurrection against the Constitution and laws of the United States.” Trump derides his own SCOTUS appointees when they dare to rule against him. So do his supporters; “traitor” is one of the milder insults hurled at Justice Barrett.

Such political attacks have consequences. Public approval of the Supreme Court has declined sharply over recent years as many Americans apparently buy the pervasive narrative that the justices decide cases based on their political preferences. Unsurprisingly, views of the Court vary greatly based on the political preferences of poll respondents.^[3]See here, here, here, and here for recent polling. What is surprising given these results is that majorities of the public actually agree with major SCOTUS decisions more often than not. See here and … Continue reading Most alarming of all, justices and judges face threats to their personal safety and security.

Is there truth to the charge that justices and judges are mere politicians in robes and particularly that the conservative SCOTUS majority is biased toward Trump?

Trump’s aggressiveness and indifference to law have triggered a flood of legal challenges to his actions. The results so far are mixed. His administration has suffered heavy losses in federal district courts but has fared better at appellate levels. The Supreme Court has overwhelmingly supported Trump in preliminary, usually procedural rulings on its emergency (AKA “shadow”) docket. The high court also sided with Trump in many substantive decisions but ruled against him in others, including on two of his top priority issues—tariffs and birthright citizenship.

In any event, raw numbers don’t prove much. Undoubtedly, legal strategy has a significant impact on the disparity between Trump’s success rate in district courts versus SCOTUS. Attorneys challenging Trump’s policies tend to sue in judicial districts they regard as most likely to rule their way, and Trump’s attorneys are quite selective in deciding which adverse rulings to take to SCOTUS.^[4]See here and here.

Beyond the outcome numbers, many Trump-related Supreme Court rulings split 6-3 between justices appointed by Republican presidents and those appointed by Democrats. This is obviously significant, but does it signify pro-Trump bias as many on the left insist?

The most credible answer comes from one of the Court’s own liberals, Justice Elena Kagan. Justice Kagan does not hesitate to criticize her conservative colleagues in her written opinions or in comments outside the Court. At a recent conference, however, she flatly dismissed the charge of pro-Trump bias as a “bad rap.” She explained:  

“Is this court very conservative? Does it do a bunch of things that are out of the playbook of the conservative legal movement that I think are deeply wrong? Yes. But, is this court kind of a puppet for the current administration? I think definitely not.”

“I don’t see this as a court that is just going to rubber-stamp what the current administration does — quite the opposite.”

In other words, the conservative justices are doing what conservative jurists do based on their jurisprudential principles. Their “playbook” generally features: close adherence to legal text (“textualism”) as originally understood (“originalism”) when interpreting constitutional and statutory law; skepticism toward the existence of constitutional rights that are not specified (“enumerated”) in its text; reluctance to interpret statutes as conferring sweeping powers on the executive branch unless clearly expressed in the text (“major questions doctrine”); and strict application of procedural prerequisites to lawsuits (legal standing, venue, etc.).^[5]See here, here, and here.

By contrast, the liberal legal playbook features interpreting constitutional and statutory provisions flexibly in light of their overall purposes and how they can best address current societal needs and circumstances. It is also more accommodating to use of litigation to achieve social ends. The fact that liberal justices (and judges) consistently follow their playbook in siding against Trump does not demonstrate anti-Trump bias any more than rulings in favor of him based on the conservative playbook demonstrate pro-Trump bias.

While their application frequently produces contrasting results, both playbooks are within the mainstream of legal thought. Indeed, having both represented on our courts is healthy for our jurisprudence. The integrity of judges and the legitimacy of courts should not be measured by the political outcomes of their decisions. Instead, the appropriate test is whether their decisions consistently reflect the reasonable application of legal principles whether derived from the conservative or liberal “playbook” or other recognized sources.

I’d submit that most work by SCOTUS meets this test, but there are exceptions. Most notably, the conservative majority’s decision last year on presidential immunity contradicts several core principles from the conservative playbook. The Court’s decisions this year rejecting Trump’s tariffs and birthright citizenship executive order should have been slam-dunks under the conservative playbook, but some conservative justices dissented from them. At least one of the Court’s emergency docket rulings seems unjustified by any playbook.

Unfortunately, we live in a time of little tolerance for opposing views and scant interest in rational debate. Instead, contrary views are regularly dismissed as the product of bad faith or ignorance. It’s hard to imagine any major figure today, left or right, responding to a loss on an important politically charged case by saying: “While I disagree with the outcome, I understand and respect the court’s decision.”

It doesn’t have to be this way; in fact, it wasn’t just a few decades ago. Al Gore accepted the controversial SCOTUS decision that arguably cost him the presidency. Public approval of the Court was significantly higher than now even after that decision. There was general agreement that elections have consequences and, therefore, presidential judicial nominations were entitled to considerable deference so long as the nominees were intellectually and ethically fit and within the legal mainstream. Senate rules required supermajorities to confirm judicial nominees, thereby both tempering presidential choices and ensuring some bipartisan congressional support.

The most effective judicial reform would be simply to return to this system, which worked well most of the time (although not always) and produced judges and justices of widely diverse ideologies who were usually approved by strong bipartisan majorities. Alas, there is little chance of this in our current political environment.