In an article published Tuesday on this blog, David Applegate applauds the New York Times for what Applegate rightly describes as an “astonishing” recent editorial. In that editorial, the Times took Justice Ruth Bader Ginsburg to task for her widely-publicized critical comments concerning Donald Trump, imagining a case in which “the resolution of the [upcoming presidential] election depended on a Supreme Court decision” (it has happened before) and posing a powerful rhetorical question: “Could anyone now argue with a straight face that Justice Ginsburg’s only guide would be the law?”

Interestingly, however, although Applegate states that “[t]he New York Times got it right,” he refers to the Court’s facade of impartiality” (emphasis added) and states that “[s]ome . . . might question whether anyone can argue with a straight face that the Supreme Court’s only guide in deciding cases is the law.” Many influential legal scholars have long contended that the Court’s decision-making is consistently governed by the justices’ political ideologies rather than by the law in politically consequential cases. Some of those same scholars, including Professors Mark Tushnet, Erwin Chemerinsky, and Eric Segall, have not only defended Justice Ginsburg but questioned the value of the judicial norm that she has been accused of violating—that of remaining, as Applegate puts it, “above the political fray.”  

I do not propose here to evaluate Justice Ginsburg’s comments, for which she has since expressed regret. Instead, I want to explore the value of the norm at issue, and to focus attention as well on systematic judicial bias that poses a far graver threat to constitutionally limited government than an individual justice’s opinion of a presidential candidate.  

The legitimacy of Justice Ginsburg’s—or any other judge’s—authority depends upon judicial impartiality not being a mere facade. The only reason that Justice Ginsburg or any other judge has any power over her or his fellow citizens is “[t]his Constitution,” (emphasis added), which declares itself to be “the supreme Law of the Land” and which all judges (and legislators, and executive officers) take an oath to support and enforce. There is a concrete this that both authorizes and limits judicial authority, a document with fixed communicative content that is independent of the beliefs or desires—the will—of any individuals or group of individuals concerning that content (It is not at all obvious what the oath would signify if a judge could, upon taking it, interpret the Constitution to mean whatever that judge believed that the Constitution ought to mean—procedures for altering “this Constitution” are set forth in Article V.)

Accordingly, those who wield judicial power have a corresponding duty to exercise independent, impartial judgment in interpreting and applying the law of the land in particular cases. They must strive to resist the influence of either external will—that is, the extra-legal beliefs and desires of government officials and members of the public—or internal will—that is, their own extra-legal beliefs and desires. Subordinating will to the principles of reason set forth in our law is not an easy, mechanical process, and judges may give way to will in spite of their best efforts or simply arrive at the wrong answer in a given case despite scrupulously guarding against the influence of will. But the difficulty of discharging their duty does not justify judges in abdicating their duty—to do so is to fatally undermine their own authority.

Impartiality is not only an individual duty but a systemic ideal to which the judiciary is institutionally committed by explicit constitutional commands. The Constitution’s promise of due process of law is, among other things, a promise of impartial adjudication in the courts—a promise that people challenging assertions of government power will have access to a neutral tribunal that is not only free from actual bias but free even from the appearance of bias. To the extent that private citizens cannot reasonably be confident that they will receive justice through litigation, they will be tempted to seek extra-legal recourse.

With a firm understanding of the value of judicial impartiality, we can perceive a twofold danger from judges entering into the political fray.  First, the expression of political opinions by judges can make actual bias more likely. As Professor Steve Lubet points out, “It is well understood in cognition science that the articulation of an opinion solidifies it.” This phenomenon, known as “anchoring,” makes it more likely that judges’ decision-making in cases implicating their political values will be influenced by those values. Secondly, the expression of political opinions can present the appearance of bias. Even if a judge who expresses strongly-held political values does his or her duty and does not allow those values to cloud their legal judgment in a politically consequential case, observers might reasonably doubt that law rather than extra-legal values inspired that judge’s vote.

But what if a particular judge is consistently guided by mere will in cases that implicate his or her political values? Should not he or she be encouraged to make those values known? Would not such disclosure equip members of the public to better evaluate his or her decisions?

The answer is no. Judges are inevitably—and properly—associated by the public with the office that they hold, and with the institution of which they are a part. That office, and that institution, are committed to and derive their authority from impartial judgment that is perceived as such by the public. The norm of staying above the political fray helps to further that commitment and preserve that authority. Ideally, a consistently willful judge would not have been elevated to the bench at all. But a judge should not escape criticism for breaking from a beneficial norm that helps to preserve values to which he or she should be committed—nor should that judge escape criticism for his or her apparent lack of commitment to those values. 

Concerns about individual judicial bias and insistence upon a norm that safeguards against it are thus entirely proper. Yet a broader problem has thus far gone unexplored—namely, the systematic bias that is entrenched in numerous areas of our jurisprudence, and which renders any appearance of impartiality a facade in entire classes of important cases.   

At present, many areas of our law are shaped by systematic bias in favor of government officials, thanks to doctrines governing judicial decision-making that have been fashioned by the Supreme Court. For decades, the Supreme Court has held, and lower courts have understood, that the default standard of review in constitutional cases—the so-called “rational basis test”—requires reflexive judicial deference to government officials in all but a handful of cases implicating rights deemed “fundamental” by the Court or burdening “discrete and insular minorities.” Judges applying the rational basis test in cases involving the right to earn a living, the right to enjoy one’s property, and even the right to preserve one’s own life credit unsupported factual assertions from government officials that they would not accept from a private party and even invent justifications for the government’s actions if the government’s lawyers cannot come up with plausible justifications on their own. The Court has also created doctrines of deference to federal executive agencies that command judges to defer to agencies’ interpretations of statutes that confer authority upon them and interpretations of regulations that the agencies themselves issue, in cases involving challenges to assertions of administrative power. Finally, the Court has fashioned immunity doctrines that insulate government officials against civil liability for the injuries that they inflict upon private citizens—immunity doctrines that have no basis in the law and, indeed, leave government officials in our constitutional republic far more insulated against liability than Crown officials in the monarchical government that the Founders cast off.

If we seek to maintain the rule of law and enjoy the full measure of freedom promised us by the Constitution, we must insist that judicial impartiality need not be—and must not be—a mere facade. Enforcing the Constitution entails not only preserving norms that help to preserve impartiality in fact and in appearance on the part of individual judges but also repudiating doctrines governing judicial decision-making that compel all judges to pre-commit themselves in favor of government officials wherever those doctrines apply. The New York Times editorial testifies to a concern with individual judicial bias that in important respects transcends political ideology. It is high time that we grapple with the problem of systematic bias, which has created an ever-growing chasm between the law on the ground and the law of the land, and for which the highest Court in the nation is responsible.