Attitudes may matter more than originalists would like to admit, but we shouldn't discount the possibility of principled judging.
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.