Speaking yesterday at the University of Minnesota’s law school, Chief Justice John Roberts commented on “contentious events in Washington in recent weeks,” presumably referring to the battle over his newest colleague on the Supreme Court.
“We do not serve one party or one interest; we serve one nation,” Roberts said. “And I want to assure all of you that we will continue to do that to the best of our abilities, whether times are calm or contentious.” He emphasized that the justices speak for the Constitution, not for the people as the political branches do. Judges don’t react to polls, he said, and the Court’s greatest errors in the past have come from yielding to political pressure.
In a political era when weeks feel like months (if not years), it’s important to recall the context of Roberts’s comments. Leaving aside the substantive allegations of past sexual assault, now-Justice Kavanaugh testified before the Senate Judiciary Committee that he viewed the allegations as an “orchestrated political hit” by Democrats, motivated by lingering anger about Donald Trump’s presidential victory and by a desire to somehow avenge Bill and Hillary Clinton. His interactions with Democrats on the Committee were generally antagonistic and evasive.
Citing his hearing performance, over 2,400 law professors – many of whom may present argument or submit amicus briefs to the Court in the future – signed an open letter to the Committee members to the effect that Kavanaugh failed in his testimony to “display the impartiality and judicial temperament requisite to sit on the highest court of our land.” Retired Justice John Paul Stevens echoed the view that Kavanaugh’s hearing testimony was disqualifying.
In an unprecedented response, Kavanaugh defended himself in an op-ed: “I know that my tone was sharp, and I said a few things I should not have said. I hope everyone can understand that I was there as a son, husband and dad.” As with his televised interview about the allegations, he presented his position via a right-leaning news outlet. He offered no elaboration on which statements he regretted and why. He was confirmed by the Senate 50-48, one of the closest votes in Supreme Court history.
Against this backdrop, I can’t say the Chief Justice’s words, on their own, are reassuring. Of course the justices believe that every decision vote they cast is faithful to the Constitution – even when they arrive at opposite interpretations of its text. Of course they believe that every opinion they sign is in the best interest of the country. The concern isn’t just that judges will intentionally put a thumb on the scale in favor of their own partisan views (although we have fewer safeguards against that danger than we need). It’s that ideology fundamentally shapes one’s understanding of reality in ways that can’t always be disentangled from constitutional interpretation. The Federalist Society, which specifically evaluates and recommends judicial nominees based on their conservatism, is explicitly founded on the idea that American law has been shaped by a dominant liberal ideology that requires an organized opposition. Constitutional law is not only inherently political, but has also become undeniably partisan.
The ideological battle over – and on – the Court isn’t going to be mitigated by the upright attitudes of individual jurists. It has to be tempered by the processes we use to form the Court; i.e. how we select justices, how many are on the Court, how long they serve, and what their deliberation methods are. Over the past few decades, social scientists have developed a vast, multidisciplinary literature on cognitive bias, its effect on decision-making, and what correctives work. I would have liked to hear Chief Justice Roberts address the legal and human challenges of impartiality, both in the justices’ actual decision-making and how it’s perceived by a polarized public.
Instead, Roberts implied that public affirmations of neutrality could be sufficient to assuage public concerns, as if the justices can just choose to turn off their ideologies like a light bulb when it’s time to analyze the law. In a similar vein, he suggested contrary to scientific studies that the Court’s decisions aren’t influenced by public opinion. Despite his comment that criticism doesn’t matter if you have life tenure, I suspect he’s given these issues quite a bit more thought than his statements let on. On balance, I don’t think that a more open discussion about them would hurt the Court at this moment in history. I’m certainly glad the Chief Justice values collegiality, the tradition of shaking hands before argument and conferences, and the like. These things do matter. But neither the justices’ internal cohesion nor their public denials of bias should be taken as evidence that the Court isn’t infected by partisanship.