Elizabeth Warren’s “Accountable” Court

Elizabeth Warren, the Senator from Harvard Law School, has a plan—of course she does—for guaranteeing an “impartial and ethical judiciary” based on “the basic premise of our legal system,” which is “that every person is treated equally in the eyes of the law.” Shortly before its unveiling, she tweeted a promise to nominate “a demonstrated advocate for workers” to the Supreme Court.

In other words, she seeks a justice who would violate Canon 3 of the Code of Conduct for United States Judges, which requires jurists to disqualify themselves from cases in which they have “a personal bias or prejudice concerning a party.” The Code does not apply to the Supreme Court, but buckle up: The aforesaid “plan for that” would extend the ethical rules to the Supreme Court, which means Warren is promising to appoint justices whose conduct she will seek to classify as unethical.

This tangle of contradiction—as to her plans, Warren likely wants us to behold the magnificence of the forest, not the individual trees—illustrates the outcome-based constitutionalism that has infected American jurisprudence. It may be true, as Chief Justice John Roberts has said, that we do not have Obama judges or Trump judges. But we are apparently supposed to have worker judges or employer judges, abortion judges or gun judges.

Conspicuously lacking from Warren’s plan for an impartial judiciary is any sense of what that means for the judge’s role in the constitutional order. The bulk of the plan seeks to root out among judges the corruption Warren sees lurking around the corner of every disagreement. Judges retire to escape ethics inquiries; take away their pensions. “Ban judges from owning or trading individual stocks.” Supreme Court justices would have to explain recusal decisions. She would apply to Supreme Court justices the judicial code of conflict. She would fast-track impeachment of judges by changing the rules of the House of Representatives.

There may be some merit in some of this. There is certainly none in her comical description of the Federalist Society as “an extremist right-wing legal group.” (Try the American Bar Association as “an extremist left-wing legal group.” Neither rolls plausibly off the tongue.)

Other proposals, such as Congress dictating which justices can rule in which cases, may present separation-of-powers concerns. Requiring justices to explain recusal decisions because litigants asked for them would encourage frivolous recusal requests. As to fast-tracking impeachments, could someone please tell the vaunted law professor that (Article I, Section 5) “each House may determine the Rules of its Proceedings”? There is nothing there, and everything disturbing, about the president telling Congress what its rules for impeachment should be.

But the plan’s real significance lies in two broader points. The first is the overall thrust of the proposals, which assume, as the Progressive movement did, that sweeping away the detritus of corruption will do away with disagreement (read: politics) and illuminate right answers in all their sparkling clarity. In this schema, we can be done with the messiness of prudential judgment.

The second is the negative space. Warren has no conception of the proper judicial role other than that it should favor litigants whose political stances she supports. The plan does not even do the courtesy of endorsing living constitutionalism. It apparently assumes that such is the natural result of eliminating corruption.

The first rule for constitutional law students should be that if their policy preferences and constitutional conclusions always align, they should reassess their interpretive methods. A similar question of judicial nominees—from Warren or others—would be to name a case in which a policy was substantively wrong but constitutionally permissible. Warren’s constitutional and policy views coincide with suspicious consistency. Nor is she alone. Robert Bork used to say that most constitutional law was a question of whose ox was being gored.

That appears to be the case for Warren. But what is even more striking is that she elucidates no judicial philosophy at all other than evaluating judges according to the outcomes they reach and assuming that those who reach the wrong ones must have been corrupt. This is a one-way standard, of course, unless Warren would assume that her pro-worker judges must be corruptly beholden to organized labor.

To be sure, corruption among judges should be rooted out, and there is a case for continuing investigations after judges leave the bench. But this incessant talk of “accountability” is no substitute for a judicial philosophy that encompasses a substantive, constitutional idea of the judge’s role in a republic.

There is nothing inherently wrong with holding misbehaving judges—according to Federalist 81, even judges who consistently rule abusively—accountable. But to reduce jurisprudence to accountability is to assume that judges have two choices in every case: Warren’s preferred outcome and the corrupt one for which they must be held responsible.

Would that constitutionalism and politics were so simple. On second thought, we may be thankful they are not. The need for judgment is what makes politics as opposed to technocracy possible. If Warren is to be president, as opposed to a senator-cum-orator, she had better get used to the fact of politics. The sheer scope of Warren’s plans for everything means she has no hope of achieving them if her legislative strategy is to stigmatize those with opposing views as corrupt.

Perhaps most disturbing, while Warren’s judicial proposals evince no judicial philosophy, there may in fact be a latent constitutional theory discernible in her spate of “plans for that.” It is that the president runs the regime and everyone else is a minion in it. We have ingested an ample serving of that philosophy for the last 12 years, perhaps longer. The word “Congress” appears only twice in Warren’s judicial plan—once to refer to judges lying to Congress and the other to demand that Congress “take action” when a judge is accused of an ethical violation. Consider this in reverse: Would anyone give serious consideration to a congressional candidate whose platform was to proclaim how the president will behave?

They would not. Nor should they. If the basis of Warren’s candidacy is that she has a plan for everything, perhaps she should have a defensible plan for the Constitution too.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 14, 2019 at 08:52:48 am

"The first rule for constitutional law students should be that if the commerce clause (for the federal government) or the police power (for the state government) gives the government the power to outlaw anything you think is immoral or degenerate, you should reassess your interpretive methods."

Exactly. If you interpret the constitution to allow schools to tell kids how to dress or how to style their hair, if you think the government can tell people how to have sex, or force them to give birth, or tell them what drugs or guns or video games they can own, or what they can eat, you're almost certainly ignoring nearly the entire constitution except your sacred "commerce power" and "police power".

Constitutional law begins with the premise that people get to live differently than you even though you could force them to live exactly as you, otherwise freedom of religion is nothing more than being able to think what you want, rather than obey the gods as you see fit.

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on October 14, 2019 at 09:30:16 am

Constitutional Law begins with the recognition that we are to “Render onto Caesar, what belongs to Caesar, and to God, what belongs to God”, The Most Holy And Undivided (Blessed) Trinity. (See, Treaty Of Paris, that ended The Revolutionary War, enacted In The Name Of The Most Holy And Undivided Blessed Trinity)

“...that to secure these Rights, Governments are Instituted among men, deriving their just powers from the consent of the governed...”, it being a self- evident truth that what is just, first and foremost, comes from the Author of our unalienable Rights, not Caesar.

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Nancy D.
on October 14, 2019 at 09:44:24 am

Unoriginal as always, Warren's is just a rehashed legal realist/critical legal studies posture, with a Progressive era preference for executive/administrative power thrown in. Still, in these times of rampant and tendentious ignorance of history, it will seem exciting and new, a judicial episode of The Love Boat.

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Image of QET
on October 14, 2019 at 10:30:12 am


If I may augment the above:

"Still, in these times of rampant and tendentious [and WILLFUL ignorance of history,..."

AND, it IS that very willful ignorance which permits / enables / encourages these partisans to pursue such a "purposive" constitutionalism / judiciary, or as Weiner states, an "outcome" based methodology.

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Image of gabe
on October 14, 2019 at 10:37:07 am

Yes, agreed, thanks. Willful was the word I was looking for. Knowledge, after all, just gets in the way of exerting one's will.

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Image of QET
on October 14, 2019 at 11:54:54 am

Yes, justices (at all levels) should not bring their political biases to the courts at which they sit in judgment, but has Prof. Weiner listened to the statements of Pres. Trump regarding his obvious belief that Supreme Court justices ought to conform to his political program? In particular that they should not have, as you quote above, "a personal bias or prejudice concerning a party.” His! I strongly disagree with Senator Warren's position, however, she is not the only problem. A bit less "bias" on the part of Prof. Weiner, would make his arguments much stronger.

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Image of FMWalsh
on October 15, 2019 at 06:33:57 am

Warren has a plan for the Constitution-ignore it and shred it into tiny pieces.

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Warren’s Teepee
on October 15, 2019 at 10:29:54 am

Something about the American judicial system which puzzles those who are taught abroad about the principle of judicial neutrality. Neutrality does not mean than judges hold no a priori views on matters that come to court. It means that they are not defenders of party political positions, and that they recuse themselves even when conflicts of interests only seem to arise.
For example, one of the Law Lords (before the creation of a Supreme Court in the UK), Lord Steyn I believe, recused himself when General Pinochet of Chile appealed before the House of Lords to be released from confinement when he was arrested in London on a warrant issued by a Spanish judge. Lord Steyn recused himself because his wife had been a member of Amnesty International. Yet one Anthony Scalia if I recall correctly sat in judgement in the notorious vote counting case, the Florida chad incident, which impacted on the election of the Bush-Cheney ticket having gone hunting only a few days before with Cheney. This would raise eyebrows in Britain. Also, the US Supreme Court judges, notwithstanding the honourable exception of Justice Roberts, appear to vote purely on party political line.
The judicial independence from the executive appears thinner in the US than in other Western democracies.

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S P Chakravarty
on October 15, 2019 at 11:16:40 am

Ummm! Just for the record, Justice Scalia also went hunting with Justice Ginsburg.

What does it all mean?

For the record, we in the US EXPECT that judges will do more than simply avoid "defending" party politics; we expect (to our eternal chagrin) that they will NOT allow those a priori preferences influence their decisions.

Perhaps, our *aspirations* are higher while our practice is lower than the alleged British performance.

Also, one may wish to consider the recent Brit Supreme court decision on proroguing parliament and the preferences of some of those esteemed jurists. Politics, anyone?

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Guttenburgs Press and Brewery
on October 16, 2019 at 06:13:55 am

[…] Princess Spreading Bull Warren is an idiot. […]

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Animal’s Hump Day News | Animal Magnetism
on October 19, 2019 at 11:30:55 am

[…] 1. Elizabeth Warren pledges a President Warren would appoint impartial judges, and then, as Greg Weiner notes in Law & Liberty, promises a SCOTUS spot for a labor advocate. From the analysis: […]

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Image of Shaddap Shutin’ Up - Non Perele
Shaddap Shutin’ Up - Non Perele

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.