Touchdowns at the Ballpark: Reversing the Politicization of the Judiciary
In February 2017, the news was filled with heated debates involving terms like filibuster, nuclear option, Merrick Garland, and hypocrisy, while the hashtags #WeNeedNine and #ConfirmGorsuch filled our social media feeds.
Mere minutes after Neil Gorsuch of the 10th Circuit Court of Appeals was nominated by President Trump to serve on the U.S. Supreme Court, the Democratic National Committee released a statement attacking him as unfit for the nation’s highest court. They likely had a similar statement prepared for Judge Thomas Hardiman, Trump’s other “finalist.” Never mind that both Gorsuch and Hardiman were confirmed by the Senate to their respective Court of Appeals seats by unanimous vote.
In similar fashion, Senator Orrin Hatch (R-Utah) penned an op-ed in 2016 explaining how his meeting with Judge Merrick Garland, President Obama’s nominee, did not persuade him to move toward a vote on Garland’s nomination. The problem? Hatch released the op-ed about his meeting with Garland prior to the meeting actually occurring. Further complicating matters, when Garland had come up for his appellate court nomination, Hatch had voted yes.
Yet, as Democratic and Republican talking points and rallying cries became household parlance, the issues pertaining to Gorsuch and Garland as potential justices were left largely unaddressed.
The hyper-politicization of society as a whole has bled into the judiciary. In the branch reliant on judicial qualifications and not partisan affiliation, many states are even subjecting their judicial seats to partisan elections. But what if we’re seeing it all wrong? What if we’re seeking a touchdown on a baseball diamond? Rather than demand a football game from a baseball team at the ballpark, perhaps we need to see how judges see themselves.
Scholars, not Politicians
Each June, a stunning percentage of the public seem to graduate from the Facebook School of Law just as the Supreme Court rolls out its latest rulings. As headlines capture the decisions, social media warriors take to their keyboards to praise or condemn the justices. To the men and women in black, however, it is the legal opinions, not the decisions or the votes, that matter most.
In my college days, whenever a professor would return a paper, my classmates and I would eagerly search the paper to find the letter grade, while our professor would implore us to read his or her comments first. To the professor, the grade is but a letter assigned in mere seconds, while the comments left are carefully considered and articulated. True understanding comes to the student who reads the professor’s remarks, which the letter grade merely reflects. The same is true when it comes to judges and their rulings.
Judicial opinions are what define the law. The final vote is merely a reflection of these opinions. This is why a vote is not merely accompanied by a majority opinion, but we often see varying concurring, dissenting, and even plurality opinions. While we are inclined to focus on the final vote, like my classmates and my pursuit for our letter grades, judges spend their time and energy on carefully constructing their opinions, which often differ substantially than what the public perceives them to be.
For example, consider the Supreme Court case National Federation of Independent Business v. Sebelius (2012), or what is referred to as the first Obamacare case. The public perception is that the Supreme Court upheld the Patient Protection and Affordable Care Act, commonly called “Obamacare,” by a 5–4 vote. The reality, however, is more nuanced, as revealed by the judicial opinions released.
The White House argued for the constitutionality of the Affordable Care Act’s individual mandate on three grounds:
1) the Commerce Clause
2) the Necessary and Proper Clause
3) Congress’ taxation power
By a 5–4 vote, the court accepted the individual mandate’s constitutionality under the third provision, but rejected it under the first two, the Commerce Clause and the Necessary and Proper Clause. Thus, while the Supreme Court did uphold the individual mandate as constitutional, it did so only under Congress’ taxation power. Simply put, the court ruled that the government cannot force you to purchase a commodity (in this case, healthcare), but it can tax you if you don’t.
Even the 5–4 vote is not quite as it seems, however. On the first two provisions — the Commerce and the Necessary and Proper Clauses — the five justices in the majority were Chief Justice John Roberts, joined by Justices Antonin Scalia, Anthony Kennedy, Clarence Thomas, and Samuel Alito. On the third provision — Congress’ taxation power — the five justices in the majority were Chief Justice John Roberts, joined by Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Four justices (Scalia, Kennedy, Thomas, and Alito) found the individual mandate unconstitutional under all three provisions and four justices (Ginsburg, Breyer, Sotomayor, and Kagan) found the mandate constitutional under all three provisions. Only one justice (Roberts) actually held what would become the court’s final ruling. Therefore, Chief Justice Roberts penned the majority opinion with no other justice joining in full.
Even this example only addresses the individual mandate portion of the Affordable Care Act. In the same case, the justices also ruled on the Affordable Care Act’s severability, anti-tax injunction, minimum coverage provision, and Medicaid expansion provisions. It is impossible to reduce the judiciary to a mere vote, let alone a political statement, talking point, or 280 characters.
Judges see themselves as scholars of the law and interpreters of the Constitution, not politicians. As such, their legal opinions are their equivalent of an academic paper or presentation. To understand the law and to understand any judge, we must look beyond the vote and read their opinions, be they majority, plurality, concurring, or dissenting.
Devil is in the Details
When appellate judges hear a case, they are asking constitutional questions and seeking constitutional answers, not political ones and certainly not ones of personal preference. When reading their judicial opinions, it behooves us to ask and seek the same questions and answers. The wrong questions inevitably lead to the wrong answers and to a grave misunderstanding of the law and of the judiciary on the whole.
The details of the case are central to the questions the judges ask and the subsequent opinions they write. Opinions rarely address broad situations — and never hypothetical ones — but, rather, are tailored narrowly to the specific circumstances surrounding any particular case. For this reason, the court will at times reach different rulings on matters that, at first glance, seem identical. For example, in 2005, the Supreme Court issued two separate rulings on the same day: Van Orden v. Perry found a display of the Ten Commandments constitutional, while McCreary County v. ACLU of Kentucky found a display of the Ten Commandments unconstitutional. Despite what headlines may have reported, neither ruling made any statement on the validity or the constitutionality of the Ten Commandments themselves.
Return to our example with the Affordable Care Act. At no point did the court consider the ethics or policy merits of universal healthcare, as these are not constitutional questions. Nor did the court issue one single ruling on the healthcare law, but it considered five specific provisions of the legislation and addressed each independently. Reading comprehension exams often ask readers to identify the main idea. When it comes to judicial opinion comprehension, however, it is the details that matter most. For this reason, concurring and dissenting opinions, despite not being the ruling of the court, are of utmost importance and arguments made in them — even in footnotes (see the famed “Footnote Four” of the otherwise unremarkable case United States v. Carolene Products Company) — often resurface in future opinions and rulings.
It Ain’t Nothing ’Til I Call It
One of my constitutional law professors at Baylor University often compared the role of a judge to that of a baseball umpire, quipping, “You can call it a strike, you can call it a ball, but it ain’t nothing ’til I call it.” The analogy is a good one: judges are not interested in the score or the outcome of the game, but in calling balls and strikes. The game plan depends on the teams (the parties before the court) and the volume inside the stadium depends on the fans (the public), but the umps (the judges) participate in neither.
When we evaluate umps, we consider who gives a larger strike zone or who gives more leeway on inside pitches, not which ump plays for which team. In the same way, a lot can be known about a judge’s judicial philosophy through a careful examination of his or her issued opinions, but arguing over a judge’s religion, political affiliation, or policy views is as effective as asking an umpire which major league team he plays for; judges are only interested in calling balls and strikes.
I was working in the U.S. Senate the day the Supreme Court issued their rulings on the Affordable Care Act. We immediately began receiving calls from Republicans asking how Chief Justice Roberts could betray his party and side with President Obama. Quite simply: he didn’t. Meanwhile, our Democrat callers were quick to commend the court for recognizing healthcare as a fundamental human right. Quite simply: they didn’t. One friend, a Harvard Law School alumnus with whom I disagree often, sent me a quick message, “Can Congress tax you for not purchasing something? Does this ruling set that precedent?” Those are the kind of ball-and-strike questions judges ask. We should ask them too if we want to understand them and their opinions.
I always give students taking constitutional law a three-step guide to reading cases:
1) What is the story? Every case has a story behind it. The story contains all the facts and details pertinent to the case and culminates with a constitutional question.
2) What is the constitutional question? The judges are asking a specific question that addresses the law and how it is interpreted.
3) What is the answer? The judges are seeking an understanding of the law that addresses the constitutional question and only the constitutional question.
Recounting a story that leads to a question that leads to an answer gives us a judge’s view of cases and allows us to see judges as they see themselves, keeping us from demanding a touchdown at the ballpark.
Justice Gorsuch perhaps put it best, “A judge who likes every result he reaches is very likely a bad judge, reaching for results he prefers rather than those the law compels.” Our politicization of the judicial process both taints our understanding and threatens the independent judiciary so crucial to American democracy.
SAMUEL CHEN is the founder and principal director of The Liddell Group, an innovative strategy firm specializing in politics, policy, and communications. He also serves as host of the television program “Face the Issues” and as Adjunct Professor of Political Science at Northampton Community College in Pennsylvania. You can follow him at @SamuelChenTV.