We hear a lot about the Supreme Court, justices, and judges lately. Rather than “pack the court,” infecting it with political poison and destroying its independence, Americans should understand a few things. Here are five facts few see, and all should appreciate.
First, judges and justices – no matter who appointed them, where they come from, what principles guide them, how activist or not – tend to be serious people. They can be wrong, of course. They can be bullheaded, overzealous, misinformed, harbor false assumptions, and use unsubstantiated facts. The key is their intent. Most judges and justices intend to act properly.
While deep divisions occur on how to read, understand, and apply laws – at times triggering acrimony – judges and justices know most of their peers aim to do right. That is why Justices Scalia and Ginsberg got along and respected each other despite deep disagreements. They knew each other believed. That is why neither supported court-packing or street violence.
Second, confusion abounds over what is meant by “conservative” and “liberal” as applied to judges and justices. Yes, nominees are selected by political leaning, but judges and justices are expected to think independently, and leave politics behind. Some do, some do not.
Key: A “judicial conservative” is different than a “political conservative.” The first is a student of written text, plain meaning, and the original intent behind laws being applied to facts. They do not substitute their judgment for Congress or the Founders and do not legislate. This may result in decisions “politically conservative” or not.
Similarly, a “judicial liberal” is definitionally activist, assuming wider room for interpretation, filling in statutory or constitutional silences, or saying what they imagine should or might have been said by Congress or our Founders.
So, “judicial conservatives” and “judicial liberals” are not the same as their political counterparts. That said, even serious thinkers sometimes imagine they are applying a judicial philosophy but seem to be acting on political preferences or fears. We are all human.
Two recent cases make the point. In both, “judicially liberal” justices summoned non-facts in a dissent, revealing political preferences. This happens and has always happened, it’s not new. Justice Sotomayor claimed COVID effects on children that were so absurd that even CNN had to correct her.
Likewise, Kagan recently unleashed fears that East Coast cities will be “swallowed” if the politics of “climate change” cannot win. Not her job, but exaggeration is forgivable and hardly unprecedented. Justice William O. Douglas, one of the longest-serving justices, was notorious for overstatement. Even Sotomayor notes that “mistakes” are made and corrected over time.
So, justices and judges get political, are wrong, and are affected by fear, as they are human. Usually, they follow a judicial philosophy. Whatever your politics, “court-packing” is not the solution.
Third, a lot happens that the public – usually – does not see until a final decision. The leak of Dobbs was illegal and unethical. Typically, judges and justices work collegially and with respect. They exchange views, think hard, and may be persuaded – if only at the margins. But margins may later become law. Behind the curtain, things would surprise you. They can change their own minds, ask tough questions, and shift views, as thoughtful, respectful, independent thinkers should.
For example, having clerked for a conservative US Court of Appeals judge, his judicial philosophy was clear. Yet just when things seemed clear, he surprised me one day. He asked hard questions about contested rights for someone ending maximum security for life.
The prisoner had committed heinous acts. But he underwent grave indignities daily, including a digital search. He would, it seemed, forever. My conservative judge was concerned about where rights ended. He challenged me to assess whether this prisoner had any rights. Had he lost them all? Was he not still a human, entitled to basic dignity, or had he lost that right too?
My judge was entirely serious, focused entirely on the law, not politics or the offense. He stopped me cold. Is a prisoner ever reduced to the point they are not entitled to human dignity?
In countless ways, behind closed doors, debates like this occur. Discussions guide a decision, making it narrow or broad, split or unanimous, procedural or substantive. All this is hidden from public view but is part of judicial independence.
Fourth, the brilliance of our Founders on the judiciary is the bench is cloistered, separate from politics. It is meant to be independent, not subject to any intimidation – let alone personal threats.
As an aside, that is why the Attorney General of the United States should right now be prosecuting all those who protest at the homes of judges or Supreme Court Justices. The statute is 18 USC 1507.
Politicians – including Attorneys General – are “political.” But they are sworn to uphold laws protecting judges and justices, thus the independent judiciary, those who sit on the federal bench.
Fifth, all this vectors to the recent acts by President Biden and the Democrats. To advocate crass political domination of the High Court, to try softening resistance to “packing the court” with a clutch of Democrat justices, betrays a total lack of understanding. If the move is meant to pervert our “independent judiciary,” it betrays a lack of integrity; it has no place in modern discussion.
In short, the federal bench stands alone and should, even if imperfect, pendulumlike, human, and cloaked in secrecy. It aims to be independent of politics, no matter how short it falls. It works with delays. To upend the federal bench for politics would, simply put, be a disgrace.