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The Supreme Court: Can It Survive the Current Era of Hyperpartisanship?

November 9, 2019

Thank you Rabbi Swartz. Shabbat shalom.

 

I confess I’m a bit overwhelmed to be back home at Temple Hesed to speak with you. The last time I stood at this bimah and spoke to this congregation was my Bar Mitzvah, some 51 years ago. Some of you were there for it.

 

I’m sure you’re happy to see that my voice has changed. I’ve gotten a little taller. I’ve got a little less hair. But I’m still wearing the same suit.

 

I must confess the memories here are powerful. Earlier I found the memorial plaques for my parents, Gertrude and Isaac Sobel, of blessed memory. They’re right over there where we usually sat. I recall as a child looking at those plaques and seeing names of people I didn’t know. Looking at those plaques today I see people – my parents, their friends, leaders of the community – people I knew, loved, respected. I feel their presence today.

 

Mrs. Oppenheim, I’m especially honored that you invited me to speak at this event that bears your family name. I appreciate what the Oppenheim family means to this community. I remember the store, and the congregational picnics, and the legacy of service to this city and this congregation.

 

And when we speak of social justice, we know that no one is more responsible for Temple Hesed’s commitment to social justice than our beloved former rabbi, and your former neighbor and dear friend, Rabbi Richman. Rabbi Richman taught us and challenged us to make social justice part of our lives and part of the mission of this congregation.

 

“Justice, and only justice, you shall pursue,” the Tanakh teaches us, and so did Rabbi Richman. We lived it in the 60’s and 70’s. Social justice is woven into the fabric of Temple Hesed. It is part of its soul.

 

So . . . why am I here? No, that’s not an existential question. I’ll leave those for Rabbi Swartz. What I mean is: What am I going to talk about tonight?

 

Well, let me start by asking you a question. How many of you think the Supreme Court and the federal courts are nonpartisan? How many don’t? 

 

My topic is The Supreme Court: Can It Survive the Current Era of Hyperpartisanship, which is a catchy way of saying I’m going to talk about judicial independence. Judicial independence means simply that judges in our federal court system are supposed to make their decisions free from partisan political influences. That’s why Congress and the Executive are often called the “political” branches of government, while the courts are called the nonpolitical branch.

 

But as our survey showed, many of you don’t believe that the federal courts, particularly the Supreme Court, are nonpartisan. And I get it. Supreme Court vacancies have become so contentious and the subject of so much political intrigue. Nominees are selected, it seems, not so much for their wisdom and temperament, but for how they are expected to rule in politically-charged cases. In such a hyperpartisan climate – and with so many 5-4 decisions – it’s hard to believe that the courts are not just another political institution, an extension of the political party in power that appointed them.

 

Last year Chief Justice John Roberts issued a statement saying: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

 

What I am going to discuss tonight is why I think the Chief Justice means what he says, and truly values nonpartisanship and judicial independence, and how that might influence the Supreme Court going forward.

 

So let’s start at the beginning. Judicial independence. Where did it come from? It came, of course, from the Constitution. The Constitution created the federal judiciary as the third branch of government in the form of a “Supreme Court, and such inferior courts as the Congress may from time to time ordain and establish.” In so doing, it sought to insulate the courts from the political branches in two ways. First, it gave judges lifetime appointments subject only to removal by impeachment, the idea being that judges could make politically unpopular decisions if they did not have to fear losing their jobs. Second, it said that judges’ salaries could not be reduced while they were in office. So Congress can’t cut judges pay because they don’t like their decisions.

 

The Founding Fathers believed that judges should reach decisions free from political pressure. Alexander Hamilton wrote: "the complete independence of the courts of justice is peculiarly essential” to prevent abuses of power by the executive and the legislature. "Permanent tenure,” he wrote, was the most important foundation of the courts' role as "bulwarks . . . against legislative encroachments."

 

As Brookings Institution scholar Russell Wheeler wrote: “Courts in the United States are not perceived as simply instruments of the state. Rather, courts are to be impartial . . . and must enforce the rights of individuals against the government, even when it may be unpopular to do so.”

 

But while the Constitution gave the courts independence from the other branches of government, it didn’t really define their role. Remember the aphorism: “The legislative branch makes the law, the executive branch enforces the law, and the judicial branch interprets the law?” Where did that “interpreting the law” thing come from?

 

It came from an 1803 Supreme Court case called “Marbury vs. Madison,” which established the power of judicial review. Judicial review means the federal courts have the power to strike down laws that are inconsistent with their interpretation of the Constitution. Chief Justice John Marshall reasoned that determining the constitutionality of laws is an inherent part of the federal courts’ job. He wrote: “It is emphatically the province and duty of the Judicial Department to say what the law is.

Marbury vs. Madison is probably the most important case in our country’s judicial history. It elevated the courts as a separate, coequal branch of government, with an important role in our constitutional system, giving it equal footing with the legislative and executive branches.

 

But as important as Marbury, I would argue, was an event that occurred the following year, in 1804, the impeachment of Supreme Court Justice Samuel Chase. By today’s standards, Chase would be considered a terrible judge. He was an openly partisan Federalist and campaigned for John Adams in the election of 1800. He made political statements from the bench, and was hostile to parties and lawyers in cases that he disagreed with politically.

 

His conduct angered Jefferson’s Democratic-Republic party, which had come into power in 1800. Many Jeffersonians, including Jefferson, wanted to remove Federalist judges from the bench.  They were angry that Adams appointed a bunch of judges right before he left office, and they didn’t like what they considered pro-Federalist rulings by these judges. So Congress actually eliminated some of the courts that the Federalists had created. But now, they wanted to go further and remove some Federalist judges from the bench, largely because they disagreed with their decisions.

 

So in 1804, the Democrat-Republican House impeached Chase on grounds of bias, intemperate statements from the bench, and erroneous rulings. But after a 22-day trial, the Senate acquitted him. Even though the Democrat-Republicans controlled the Senate, many believed judges should only be removed from office for misconduct, and not because Congress disagreed with their decisions.

 

Former Chief Justice William Rehnquist, who wrote the definitive book on the impeachment of Justice Chase, called Chase’s acquittal “testimony to the complete independence of federal judges from removal because of their judicial decisions.'' And indeed, ever since Justice Chase, virtually all impeachments of federal judges have been based on allegations of either legal or ethical misconduct, and not because of the way they decided cases.  

 

But federal judges learned their lesson from the impeachment of Justice Chase. They learned that judicial independence is a two-way street. If judges get lifetime tenure and no reduction in pay and exercise the considerable power to strike down laws made by the political branches, then they had to be perceived as nonpartisan. So judges – including Justice Chase – curtailed their political activity, and federal judges ever since have been mindful to avoid the appearance of political partisanship and maintain a distinct separation from the political branches. Why?

 

Because judges understand that judicial independence and the appearance of nonpartisanship are what give the federal courts their most important asset – legitimacy. In the US we abide by court decisions, even if we disagree with them. The Rule of Law – that doesn’t happen everywhere in the world.

 

Why does it happen here? Because we have a legacy of trust in the courts. As Professor Charlie Geyh has written: “[T]he independence of the judiciary depends not only on the constitutional protections of judges, but also on public faith in a fair and responsive court system. . . . [P]ublic trust in the judiciary [is] . . . based on confidence that the federal courts [are] not dominated by another branch of government or by one political party.”

 

So, let’s fast forward. There have been times in US history that have been hyperpartisan and when judicial independence was under attack – especially the pre-Civil War years and Reconstruction, during the industrialization of the late 19th and early 20th centuries, and Franklin Roosevelt’s court-packing plan during the New Deal.  But it would be hard to imagine a more partisan time than now. The line between the political branches and the courts is becoming less and less clear, and, I fear, that public faith in the nonpartisanship of the courts has been at least stirred, if not shaken.

 

Now here, I should distinguish between partisan ideology and judicial ideology. Many judges readily acknowledge that they have a specific judicial philosophy. Those who favor a conservative ideology will read the words of the Constitution or a statute narrowly and interpret only the language of the text. Those who follow a liberal ideology will look behind the language to the purpose of the law. Both ideologies have their adherents, and our judicial history has been like a pendulum swinging back and forth between these ideologies.

 

Now, as we know, the conservative judicial ideology in many ways tends to align with Republican party principles, while the liberal judicial ideology in many ways aligns with Democratic party principles. But not always, and not in all cases, and not all judges follow a consistent ideology all the time. So that’s why judges can say that their decisions are not partisan. Their decisionmaking, they may say, may be influenced by a judicial ideology, but not by the dictates of a political party.

 

Chief Justice John Roberts is no doubt a judicial conservative. Before he was a judge he was a major player in shaping a conservative judicial philosophy in the Reagan and Bush administrations. So, many people expect, now that the Supreme Court has a solid conservative majority, Roberts and his fellow conservatives will undo years of judicial precedent, and the judicial pendulum that swung for many years to the left and has been shifting back, will now accelerate and move dramatically to the right.

 

But John Roberts has another role in addition to deciding cases. As Chief Justice, he is the head of the federal judicial branch. He is its voice and represents it to Congress, the President, the bar, and the public. Most importantly, he is the guardian of the judiciary’s independence.

 

Few justices have been as ardent a spokesman for judicial independence as John Roberts. During his confirmation hearings he said it would be frustrating for lawyers and bad for the law if judges based their decisions on politics. Over and over again in public appearances Roberts has emphasized that “we in the judiciary do not do our business in a partisan, ideological manner,” and, “We don’t work as Democrats or Republicans.”

 

So his statement last November that “We do not have Obama judges or Trump judges,” was just the latest in his recurring coda that the courts are not partisan. Significantly, he made that statement in response to criticism from President Trump about a decision made by what the president called “an Obama judge.”

 

Clearly, the Chief is troubled by accusations of judicial partisanship.

 

And for good reason. He understands that the appearance of partisanship could affect the Court’s legitimacy, and that the public could lose its faith – if it hasn’t already – that the courts are fair and not controlled by political interests. He knows that once that faith is gone, there could be serious repercussions for the courts.

 

Just as there is a judicial pendulum, there is also a political pendulum. Some day, inevitably, Democrats will again control the White House and the Senate. And when that time comes, especially in today’s hyperpartisan climate, Democrats could take a number of steps to curtail the federal courts’ independence, especially if they believe the courts are acting in a partisan manner, or even if they just disagree with Court’s decisions.

 

For example, Congress could limit the courts’ jurisdiction and powers of judicial review, so that the courts can’t hear certain types of cases, such as cases involving the constitutionality of state laws or certain types of statutes.

 

Congress could refuse to give pay raises to judges and limit the courts’ operating budget. The Constitution says Congress can’t reduce judges’ salaries, but it doesn’t say they have to give them raises.

 

Congress might also consider impeaching judges whose decisions they don’t like. Yes, no judges have been impeached for their judicial decisions since Justice Chase, but in the current hyperpartisan climate, what’s to say that can’t happen again?

 

Congress could propose a constitutional amendment to put term limits on federal judges and end lifetime tenure. That’s already being discussed, including at the Democratic presidential debates.

 

Also being discussed is the idea of packing the Supreme Court – adding more justices. I don’t think any of the leading candidates are supporting it, but in these times, nothing appears to be off the table.

 

Could we someday see a Supreme Court with 11 justices, and then 13 when the political pendulum swings back, and then 15 when the pendulum swings again? And then what happens when precedents that were overturned by one Supreme Court get restored when the makeup of the Court changes again, so the law bounces back and forth like a ping pong ball depending upon which political party is in power?

 

It would be a mess. It would undermine judicial independence and render it meaningless. It would alter the foundational checks and balances that the Founders carefully weighted into our system. It would reduce the federal courts to nothing more than a tool of the political branches. It would create instability in the law as precedents would get overruled and then restored with each shift in the ideological makeup of the bench.

 

Moreover, it would damage the Supreme Court and the federal judiciary as an institution. Roberts – like his predecessor and mentor Rehnquist – is a student of the Supreme Court’s institutional history. As Joan Biskupic wrote in her recent biography of Roberts, he has studied the reputations of past chief justices and has worried about what history would make of him.

 

I cannot believe that John Roberts wants the legacy of the Roberts Court to be: The Court that undermined judicial independence.

 

So, as the man in the middle, the conservative swing vote on one hand, and the Chief Justice obliged to protect the institution of the Courts on the other, what’s he to do? Will he be the conservative ideologue of his early career, or the moderate jurist who tries to defuse the perception of partisanship?

 

I think we’ve already gotten a hint that Roberts will not always be a predictable fifth conservative. As you’ll recall, he cast the deciding vote to uphold the ACA – to the chagrin of conservatives – and last term his was the deciding vote to disallow the citizenship question on the immigration forms.  

 

Don’t get me wrong. I don’t think John Roberts will suddenly become Harry Blackmun. I believe that he and the conservative majority will continue to chip away at precedents in several areas. But I don’t expect the dramatic, sweeping changes that some have predicted. I don’t expect many long-standing precedents to be overturned. Roberts said during his confirmation hearings that “I do think that it is a jolt to the legal system when you overrule a precedent,” citing the effect on stability. “It is not enough that you may think the prior decision was wrongly decided.”

 

Now, granted, he said that during his confirmation hearing when he was trying not to scare Senate Democrats. But still it provides a rationale for upholding precedent that he might disagree with, especially when the only circumstance that’s changed is the ideological composition of the Court.  

 

The judicial pendulum can go either way. It can swing swiftly and broadly, like an axe, cutting large swaths in the prevailing law, or it can edge deliberately and finely, like a scalpel, trimming away at the margins, but leaving core judicial principles intact. In his seat in the middle, John Roberts controls the blade. Which way will he cut? I think his institutionalist instincts will prevail over his ideological leanings, and he will take a moderate and incremental approach to protect the Court’s independence.

 

So, can the Supreme Court survive the current era of hyperpartisanship? Honestly, I don’t know. But I do think Chief Justice Roberts will try to ensure that it does.

 

But what do I know? I’m just a kid from Scranton.

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