Will Lady Justice resist President Trump’s efforts to remove the remainder of her tattered robes? Will our next Supreme Court justice stand naked at the bench, decided on the outcome of future cases before reading the briefs and hearing the oral arguments? It seems that is what Trump expects.
During the October 19, 2016 presidential debate with Hillary Clinton, Trump declared: “I will be appointing pro-life judges.” When asked whether he would seek to have Roe v. Wade overturned, he replied that he would be appointing two or three justices so Roe would be overturned “automatically.” At the 44th annual March for Life on January 27, Vice President Pence assured the crowd that “President Donald Trump will announce a Supreme Court nominee who will uphold the God-given liberties enshrined in our Constitution in the tradition of the late and great Justice Antonin Scalia.” While Pence was more discreet than the President, as would be any experienced politician, his message was clear. The next Supreme Court justice will be expected vote to overturn Roe.
Whatever one thinks about Roe v. Wade and wherever one stands on abortion, such explicit politicizing of the highest court in the land should be distressing. Lady Justice wears robes and carries a blindfold as symbols of independence and objectivity. Supreme Court justices, like other federal and state court judges, wear robes for the same reason. Whatever political preferences and personal biases inhabit the humans beneath the robes; in their robes judges are all the same – objective adjudicators of law and fact.
Sadly, viewing the Supreme Court as just another political branch of government is not peculiar to the new administration or the Republican Party. Democrats celebrated (quietly, for the most part) that Justice Scalia’s death would allow a ‘democratic’ replacement. The republican senate refused to act on President Obama’s nomination of Merrick Garland in hopes of winning the next election and replacing Scalia with a ‘republican’. Members of the court are seen by both parties, by constitutional scholars and by the general public as liberals and conservatives with clear expectations about how they will rule in particular cases.
And sometimes those expectations are confirmed by the court’s rulings. While party labels do not predict how justices will vote in the bulk of Supreme Court cases involving arcane or technical legal issues, all too often the politics of the appointing president tells us how justices will rule on politically controversial matters. A review of the Court’s 2015-2016 rulings reveals that Justice Scalia’s absence from what had been a clear conservative majority led to liberal victories in a handful of cases involving mandatory public union dues, Obamacare’s individual mandate, tribal jurisdiction over non-tribe members and affirmative action.
But the problem is as much one of public perception as of actual political decision-making by the justices. The justices explain what appears to be a liberal-conservative split as differences in judicial philosophy and theories of interpretation. But the public, members of Congress and the President see the division as purely political. For them, decisions they do not like are not objective determinations of what the law requires, rather they are political decisions to be reversed by winning the White House and appointing new judges. Their expectation is that a disrobed Lady Justice will wield her sword not in service to justice but in service to the partisan causes of those who armed her.
Of course it would be naive to suggest that judges, even wearing their robes, can be totally blind to their personal values and politics. But they can and should aspire to do so. If we select them on the basis of their politics and we judge them by whether they are true to our politics, they will be less inclined to take their robes seriously.