The recent Supreme Court ruling in the tariffs case is a solid win for conservative proponents of the court. Having applied the major questions doctrine to ruled against the Trump administration, this case is the perfect counterpoint to the persistent left-wing critique that the conservative justices twist originalist judicial philosophy to achieve conservative outcomes and bend over backwards to appease President Trump. The conservative justices in the majority have aptly demonstrated their consistency and commitment to legal principles by applying the same doctrine against a conservative president as they have against liberal ones in the past. It's hard to see how the most rabid left-wing critics of the court can maintain that the conservative justices are fully in the tank for Trump in light of this ruling. Now that we can put to bed the most extreme and unreasonable criticisms of the court, I wonder, can we also admit that there is a kernel of truth there that's important for the future of the court?
Partisans on both sides have often accused justices appointed by presidents of the opposite party of being primarily driven by the desire to achieve policy outcomes ("activist judges" so-to-speak). That's pretty much the go-to critique people throw at justices they don't like. Surprising no one, President Trump has been opening up on the justices in the majority who ruled against the administration. The court's favorability among Americans has been steadily declining. Now that we have this case as a resounding example of consistent application of neutral principles to presidents of different parties, should we conclude that these critics are to blame for the court's institutional struggles and declining perceptions?
To do so is certainly tempting, especially in the current moment where the president pulls no punches when he fails to get his way before the court. When Trump criticized the actions of an “Obama judge” Justice Roberts defended the independence of the judiciary, "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". I respect what Roberts is trying to do with comments like this. In President Trump's eyes, any judicial ruling contrary to his preferred outcomes seems to conveniently be the result of bias. This isn't how the judiciary ought to work. Litigants shouldn't whine about it every time a decision goes against them. On the other hand, Roberts' comment seems to wrong on its face. Trump apparently responded to Roberts comment, "Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country". True! Can anyone seriously deny that judges appointed by different presidents, and particularly presidents of different parties, have on average different perspectives, worldviews, and judicial philosophies? Can anyone seriously deny that this effects how those judges rule?
With the opinion in Learning Resources, Inc. v. Trump, this subtext has now essentially become text. The Justices are having this argument over how consistent they all are in the pages of the opinions! Gorsuch spends over 40 pages, longer than the majority opinion, on what amounts to an extended call out of several of his fellow justices for their alleged lack of consistency. Two of the "camps" that Justice Gorsuch calls comprise sets of three justices who either concur in the outcome of Learning Resources when they have declined to rule based on the major questions doctrine in the past (Kagan, Sotomayor, and Jackson), or dissent in Learning Resources when they have adopted the major questions doctrine in the past (Kavanaugh, Thomas, and Alito). I wonder what factors these sets of justices might have in common other than their positions in this particular case?
In my view, norms that facilitate cooperation and rule-following sometimes paradoxically also require space for conflict. We can't just wish away strong and deeply held disagreement. When people engaged in politics and come across allegedly neutral norms that require putting politics aside, they often become very suspicious that these norms are a trap deployed by their opponents to gain an advantage. We need look no further than the evolving discuss over the Supreme Court itself to see this playing out in real-time. It can be tempting to think that the solution is to just norm harder. We need people to look to their better angels and put aside political disagreements to support shared values like the rule of law.
I have a different view of the situation. Rather than asking people to give up on conflict, we can ask that they play by certain rules while the conflict continues. Litigants who show up on opposing sides don't need to agree, or be nice to each other, but they do need to follow the rules. The existence of a place where conflict can occur while still operating within certain boundaries is part of what gets buy-in from all parties to follow the rules in the first place. There is still an outlet for anger and hurt feelings. Everyone knows they will "get their day in court" where they can really take it to the opposing party and show them how they are wrong. The ability to engage in conflict is an essential part of the underlying cooperation wherein everyone agrees to the rules of how the conflict will be adjudicated.
Many people care about the outcomes of cases before courts in the US for reasons beyond the dry legal issues that those cases present. It is inevitable that they will bring there worldviews and political opinions with them when they consider how they feel about the courts. And I don't even think this is entirely unreasonable. The courts safeguard rights that aren't always going to be popular, and as a result need some protection from majoritarian impulses. At the same time, they shouldn't be entirely insulated from the democratic process. It isn't really sustainable for courts to maintain the illusion that law is simple "calling balls and strikes". When Justice Roberts says "We do not have Obama judges or Trump judges" many people are going to read this as bullshitting. The president who appointed a judge is so obviously informative of how that judge will rule. It isn't perfectly predictive of course, but it would be silly to claim there isn't some relationship. Cynics will see such statements as an attempt to maintain the illusion of neutrality while their opponents are hard at work doing everything they can to influence outcomes for partisan reasons.
Such critiques aren't entirely far. In my opinion, all current supreme court justices really are much more concerned about neutral legal principles than your average voter or politician. That's why they are spending pages upon pages arguing about legal nerd shit instead of just getting their desired outcomes and going on with their days. At the same time, the justices are human, and I think it is important to acknowledge that. We can't ask people to ignore who appointed a judge, but we can establish a norm that when you don't get the outcome you want, you still need to respect the outcome and follow the process. The recourse for changing who sits on the federal bench is to do politics and try to influence appointments. I think this would lead to a more realistic and healthy view of the courts.
The recent Supreme Court ruling in the tariffs case is a solid win for conservative proponents of the court. Having applied the major questions doctrine to ruled against the Trump administration, this case is the perfect counterpoint to the persistent left-wing critique that the conservative justices twist originalist judicial philosophy to achieve conservative outcomes and bend over backwards to appease President Trump. The conservative justices in the majority have aptly demonstrated their consistency and commitment to legal principles by applying the same doctrine against a conservative president as they have against liberal ones in the past. It's hard to see how the most rabid left-wing critics of the court can maintain that the conservative justices are fully in the tank for Trump in light of this ruling. Now that we can put to bed the most extreme and unreasonable criticisms of the court, I wonder, can we also admit that there is a kernel of truth there that's important for the future of the court?
Partisans on both sides have often accused justices appointed by presidents of the opposite party of being primarily driven by the desire to achieve policy outcomes ("activist judges" so-to-speak). That's pretty much the go-to critique people throw at justices they don't like. Surprising no one, President Trump has been opening up on the justices in the majority who ruled against the administration. The court's favorability among Americans has been steadily declining. Now that we have this case as a resounding example of consistent application of neutral principles to presidents of different parties, should we conclude that these critics are to blame for the court's institutional struggles and declining perceptions?
To do so is certainly tempting, especially in the current moment where the president pulls no punches when he fails to get his way before the court. When Trump criticized the actions of an “Obama judge” Justice Roberts defended the independence of the judiciary, "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". I respect what Roberts is trying to do with comments like this. In President Trump's eyes, any judicial ruling contrary to his preferred outcomes seems to conveniently be the result of bias. This isn't how the judiciary ought to work. Litigants shouldn't whine about it every time a decision goes against them. On the other hand, Roberts' comment seems to wrong on its face. Trump apparently responded to Roberts comment, "Sorry Chief Justice John Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view than the people who are charged with the safety of our country". True! Can anyone seriously deny that judges appointed by different presidents, and particularly presidents of different parties, have on average different perspectives, worldviews, and judicial philosophies? Can anyone seriously deny that this effects how those judges rule?
With the opinion in Learning Resources, Inc. v. Trump, this subtext has now essentially become text. The Justices are having this argument over how consistent they all are in the pages of the opinions! Gorsuch spends over 40 pages, longer than the majority opinion, on what amounts to an extended call out of several of his fellow justices for their alleged lack of consistency. Two of the "camps" that Justice Gorsuch calls comprise sets of three justices who either concur in the outcome of Learning Resources when they have declined to rule based on the major questions doctrine in the past (Kagan, Sotomayor, and Jackson), or dissent in Learning Resources when they have adopted the major questions doctrine in the past (Kavanaugh, Thomas, and Alito). I wonder what factors these sets of justices might have in common other than their positions in this particular case?
In my view, norms that facilitate cooperation and rule-following sometimes paradoxically also require space for conflict. We can't just wish away strong and deeply held disagreement. When people engaged in politics and come across allegedly neutral norms that require putting politics aside, they often become very suspicious that these norms are a trap deployed by their opponents to gain an advantage. We need look no further than the evolving discuss over the Supreme Court itself to see this playing out in real-time. It can be tempting to think that the solution is to just norm harder. We need people to look to their better angels and put aside political disagreements to support shared values like the rule of law.
I have a different view of the situation. Rather than asking people to give up on conflict, we can ask that they play by certain rules while the conflict continues. Litigants who show up on opposing sides don't need to agree, or be nice to each other, but they do need to follow the rules. The existence of a place where conflict can occur while still operating within certain boundaries is part of what gets buy-in from all parties to follow the rules in the first place. There is still an outlet for anger and hurt feelings. Everyone knows they will "get their day in court" where they can really take it to the opposing party and show them how they are wrong. The ability to engage in conflict is an essential part of the underlying cooperation wherein everyone agrees to the rules of how the conflict will be adjudicated.
Many people care about the outcomes of cases before courts in the US for reasons beyond the dry legal issues that those cases present. It is inevitable that they will bring there worldviews and political opinions with them when they consider how they feel about the courts. And I don't even think this is entirely unreasonable. The courts safeguard rights that aren't always going to be popular, and as a result need some protection from majoritarian impulses. At the same time, they shouldn't be entirely insulated from the democratic process. It isn't really sustainable for courts to maintain the illusion that law is simple "calling balls and strikes". When Justice Roberts says "We do not have Obama judges or Trump judges" many people are going to read this as bullshitting. The president who appointed a judge is so obviously informative of how that judge will rule. It isn't perfectly predictive of course, but it would be silly to claim there isn't some relationship. Cynics will see such statements as an attempt to maintain the illusion of neutrality while their opponents are hard at work doing everything they can to influence outcomes for partisan reasons.
Such critiques aren't entirely far. In my opinion, all current supreme court justices really are much more concerned about neutral legal principles than your average voter or politician. That's why they are spending pages upon pages arguing about legal nerd shit instead of just getting their desired outcomes and going on with their days. At the same time, the justices are human, and I think it is important to acknowledge that. We can't ask people to ignore who appointed a judge, but we can establish a norm that when you don't get the outcome you want, you still need to respect the outcome and follow the process. The recourse for changing who sits on the federal bench is to do politics and try to influence appointments. I think this would lead to a more realistic and healthy view of the courts.