To respond to the legitimate grievances of populists, argues Stephen Harper, conservatives have to snap out of their free market dogmatism.
Trump and Roberts Are Both Right About Judges
President Trump recently made reference to a judicial decision made by “an Obama judge” which went contrary to the administration’s position. Chief Justice Roberts responded publicly to Trump’s comment with, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Trump replied on Twitter, “Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges.’”
And off we went, with media commentators siding with Trump or Roberts, criticizing the other, and predicting the end of the republic.
Thing is, both are right. But not in a Pollyannaish, “can’t-we-all-just-get-along-together?” way.
Trump’s and Roberts’ positions mirror a dispute between political scientists who study judicial behavior, on the one side, and legal scholars and judges on the other side. In political science, judicial scholars who are “attitudinalists” hold that votes by Supreme Court justices reflect the underlying ideology of the given justice. (This exists among lower court judges as well, albeit less obviously given the possibility of reversal on appeal.)
Jeffrey Segal and Harold Spaeth, leaders in this approach, argue that “the Supreme Court decides disputes in light of the facts of the case vis-a-vis the ideological attitudes and values of the justices.”
They add, “Simply put, Rehnquist votes the way he does because he is extremely conservative; Marshall voted the way he did because he was extremely liberal.” Donald Trump could not have put it more succinctly.
My armchair assessment is that the vast majority of quantitatively-oriented judicial scholars in political science, as well as most rational-choice judicial scholars and a good portion of traditional judicial scholars in political science, agree with Segal and Spaeth that justices vote their ideology. The only remaining question is nailing down how much, which then spins into internecine debates in political science over the extent to which external factors might constrain ideological voting on the Supreme Court.
While a consensus in some subfields of political science, Segal and Spaeth’s claim is nonetheless rejected by every judge I’ve ever heard speak to the issue, and rejected by most law professors as well. The late Justice Antonin Scalia, for instance, flatly denied that his political preferences played any role in his votes. Like Chief Justice Roberts’ response to President Trump, Scalia insisted that he did his “level best” (as Roberts put it) to provide justice, not politics, to those who appeared before him.
Who’s right? As with Trump and Roberts, I think they’re both right. The solution to the puzzle comes in recognizing both the distinction and the connection between political preferences and legal philosophy.
“Liberal” as well as “conservative” judges have more or less coherent legal philosophies they apply when making their decisions. (And, in truth, we should note that different judicial philosophies overlap at many points.) These legal philosophies include matters of to how to read legal texts, how to relate these legal texts to other legal values, how they reflect or relate to the nature and weight of legal presumptions, etc. At no point do (most) judges ask, “which side do my political preferences favor?”
To be sure, personal political preferences might create something akin to a priming effect in indeterminate cases. But I don’t think we need to get that subtle. Rather, we need only observe that while judges (and judicial nominees) develop and apply coherent legal philosophies, the politicians who nominate and confirm them are disproportionately interested in the policy implications of the legal philosophies of the nominees they appoint and confirm.
The connection between legal philosophies and politics is that different legal philosophies map onto different substantive policy outcomes. For example, a justice or judge develops an abstract opinion about whether the Fourteenth Amendment due process clause, fairly understood, simply requires a fair trial for accused criminals, or whether it requires criminal trials consistent with “the American scheme of justice.” If the former, then the justice would not think the Fourteenth Amendment incorporates the Sixth Amendment right to a jury trial, if the latter, then the justice would think the jury right incorporated. When faced with the question at a hearing, if one asks the justice, the justice in truth responds the decision reflects his or her legal philosophy only.
At the nomination and confirmation stages, however, politicians naturally take into consideration anticipated outcomes as well as the legal philosophy a justice or judge. Liberal politicians nominate and confirm judges with legal philosophies that map onto liberal political outcomes. Conservatives do likewise.
So Trump is not at all incorrect to refer to a decision being made by an “Obama judge.” Obama nominated the judges he did in large part because he thought their decisions would accord with his substantive political preferences more than those of alternative nominees. Chief Justice Roberts, however, is correct in saying judges are not making political decisions, but rather are “doing their level best to do equal right to those appearing before them.” That Obama nominated judges with legal philosophies that accorded with his personal political preferences does not imply those judges are not fairly applying their own, coherent legal philosophies in the decisions they make.
The only thing I might add to Roberts’ remark is that the judges are doing their level best according to their own lights. That is, they do apply coherent legal philosophies to the cases in front of them without referring to their personal political preferences. Whether an Obama judge, or a Trump judge, they are largely people—and judges—of integrity. Nonetheless, we need not pretend that constitutional and legal philosophies do not map consistently onto substantive political outcomes. There is a difference between the rough and ready work-a-day politics of Congress and the high politics of law and the Constitution. There are also obvious connections between the two, connections we would be foolish to ignore even as we concede the personal integrity of the judges in applying their legal philosophies in their decisions.