The fiction of non-partisan judges and Justices

In a talk at Brigham Young University, Justice Neil Gorsuch denied that the Supreme Court is split along partisan lines. Chief Justice Roberts has made a similar denial. He disputes the idea that there are Obama judges and Trump judges.

Amy Coney Barrett, a conservative jurist who would like to join Gorsuch on Roberts on the Supreme Court, has echoed the Chief Justice’s view. At a conference at the College of William & Mary, she said: “The chief justice, I think, articulated what members of the judiciary feel.”

Gorsuch, Roberts, and Barrett are all presenting a myth. The Supreme Court is sharply divided along partisan lines. It’s true that some of the Republican appointees can be quirky in their votes at times. However, the four Democratic appointees vote as a block in the vast majority of controversial cases. And in these cases, at least four of the five Republican appointees typically line up on the other side.

The same pattern applies at lower levels of the federal judiciary. Do Gorusch, Roberts, and Comey think it’s a coincidence that leftist lawyers invariably want to bring their cases before Democratic appointees on the West Coast?

When I practiced law, I could almost always accurately predict how the tough the sledding would be in a non-frivolous civil rights case, for example, the minute I ascertained whether the district court judge had been appointed by a Republican or a Democrat. And this was in a less partisan environment than the one that exists today.

Why, then, do brilliant judges like the three mentioned above insist on the fiction of non-partisanship? One reason is that judges, and Justices in particular, want to believe they and their institution are special. Naturally, they chafe at the notion that they are just politicians in robes. There’s nothing special about that status.

Judges and Justices also want their decisions to be respected. If they are little more than politicians, there’s no reason to respect what they say.

In addition, Republican jurists want to protect the courts from being “packed” when Democrats obtain power. The idea of expanding the number of Supreme Court Justices is gaining currency on the left. Leftists can’t argue for expansion simply by saying they are outnumbered. They need a more principled-sounding argument.

One argument is that Brett Kavanaugh is a rapist. But that one has been tried. It came up short and, despite the Dems’ best efforts, will probably continue to do so.

Thus, Dems will be left to argue that the Supreme Court has become the stronghold of hyper-partisan right-wingers bent on rolling back civil rights and liberties, and blocking crucial reforms in the name of the dead hand of the past.

Denying the Supreme Court’s partisanship is an attempt to head off this argument. It’s a fiction, but a mostly innocuous one, as long as conservative Justices don’t try to demonstrate their lack of partisanship by pulling their punches when they vote.

In her talk at William & Mary, Judge Barrett said the greatest threat to the judiciary is “people perceiving us as partisan.” If so, the need for judges to deny they are partisans is obvious.

However, while Barrett may well be right that the perception of partisanship is a serious threat to the judiciary, this doesn’t mean the perception is incorrect.

In his address at BYU, Justice Gorsuch pointed to the collegiality that exists on the Supreme Court. He said that the Justices eat packed lunches together while Justice Stephen Breyer tests out knock-knock jokes that his grandchildren taught him. In addition, they sing happy birthday to each other, grill burgers at employee picnics, and play practical jokes.

That’s good, but it pertains to civility, not partisanship. Partisanship is measured by how the Justices vote. In the big cases, most, if not all, of them vote along partisan lines.

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