by Barry Edelson


Neither Blind nor Just


When a Federal judge sentenced Viktor Bout to 25 years in prison for arms trafficking last week, it prompted this decidedly one-sided statement from the Russian Foreign Ministry (italics added): "The American justice system, clearly carrying out a political order, ignored the arguments of lawyers and multiple appeals from different spheres made in the defense of this Russian citizen." It is certainly the purview, indeed the responsibility, of governments to stand up for a citizen who has been accused of a crime in a foreign country, however terrible the crime or plausible the accusation. But Americans instinctively bristle at the suggestion that our judges jump at the command of political leaders. "Maybe this happens in YOUR second-rate country," we are inclined to counter, "but we don't have kangaroo courts in the U.S. of A."

Regrettably, the actions of many of our judges, most visibly those who sit on the highest court in the land, have made it increasingly difficult to muster that defense. The Russians' statement stings all the more because we feel vulnerable to the charge. Can we really and truly say that our judges are immune from or indifferent to the pressures of elective politics? Have we been mistaken to trust in their neutrality, and done so only in the absence of any clear evidence to the contrary?

This is not to suggest that bias always equals corruption. There are indeed corrupt judges, as there are corrupt individuals in any sphere of human activity. For example, two Pennsylvania judges were sentenced last year for sending thousands of kids to jail in exchange for kickbacks from the proprietors of a juvenile detention center. Fortunately, such instances would appear to be the exception by far, but they cannot help but cast a shadow over the judicial profession as a whole. Additionally, the extreme example ought not to overshadow a great many lesser examples of judges who, though not guilty of lining their pockets per se, nonetheless appear to rule in favor of those with whom they are personally, politically or commercially aligned. Too much depends on the decisions of the courts to overlook any taint against their impartiality. When an ordinary citizen without political influence or connections stands before a court of law, he should not harbor the slightest suspicion that the judge is being paid, pressured, manipulated or otherwise made to hand down a decision that is based on anything other than his or her understanding of the law.

The election of judges in most states and their endorsement by political parties offers little in the way of reassurance. The issue is not whether those judges who are corrupted by money or politics represent a tiny minority of the men and women on the bench. The issue is whether judges who have actively promoted political points of view, or held positions in government by virtue of their political connections, or accepted the generosity of affluent supporters and thereby acquiesced in the implicit reciprocation that such a transaction implies, can genuinely be trusted by the public to be free of bias. It would seem to take an extraordinary individual indeed whose pure devotion to the law overwhelms any other worldly consideration in the administration of justice. It would take an even more extraordinary leap of faith to believe that all, or even most, of our sitting judges were nominated by governors or selected for a judicial slate based solely on their exceptional ability and integrity, and not at all for their allegiance to a particular party or its governing philosophy. Perhaps it is unrealistic to hold judges to such a high standard, or to suppose that the blindness of justice is an ideal that is truly attainable by ordinary mortals. But if we do so decide, then we are as much as admitting that we can never be certain whether any judge's decision is rendered entirely on the merits.

If it is too much to suggest that the honesty of judges must always be in doubt, let us consider why the judicial system should be uniquely situated among the institutions of society. As representatives of governmental authority who are elected and/or chosen to perform an essential function, judges are subject to the same immutable laws of the public sector, primary among them being that perception is hard currency. As soon as doubt starts to creep into the minds of the citizenry, it is like a slow trickle that can erode the most powerful edifice. There is nothing unusual in a judge's personal perspective and lifetime of experience being brought to bear on the application of the law (notwithstanding Chief Justice John Roberts' simplistic equation of judicial review with a baseball umpire's calling of balls and strikes). However, there is a world of difference between a lawyer who humbly considers the offer of a judgeship as the pinnacle of a career in the law, and one whose career is aimed at the bench for the express purpose of advancing a legal philosophy. While thousands of judges surely labor in incorruptible obscurity, the decisions of the most visible and oft-quoted jurists have a salutary effect on the public image of the bench as a whole.

It is said that the current Chief Justice takes very seriously the integrity of the Supreme Court and the judicial system generally. Hence he is reputed to seek narrower decisions in many cases in order to gather larger majorities and, consequently, more public legitimacy. If this is true, then he is implicitly acknowledging the public perception that the court's liberal and conservative "wings" are increasingly irreconcilable. Whether or not this perception is based on reality or general ignorance about how the court works, a steady barrage of 5-4 decisions along ideological lines clearly undermines public confidence in the court's impartiality. It is preposterous to suppose, as defenders of various decisions invariably do, that the justices don't take into account what is said about them in the newspapers, or that they act in absolute indifference to politics. The oral arguments last month on The Affordable Care Act, in which several of the justices framed their questions in terms that were astonishingly similar to those made by advocates for and against the law, should put such nonsense to rest permanently.

Those on the left naturally take ideologues on the right to task for pushing the court in one direction, while those on the right criticize ideologues on the left for doing the same. Each also typically excoriates the other for the hypocrisy of alternately espousing activism and restraint, depending on which approach is more likely to produce a desirable outcome in a specific case. It is tempting to suggest that there is fault on both sides, for surely there is some truth in it. But it is hard to ignore the fact that conservatives created an organization 30 years ago for the express purpose of reversing what they believed to be a strong liberal bias among judges. This group, the Federalist Society, exists solely to make the courts more conservative, primarily by putting more like-minded judges on the bench. In this, it has been unquestionably successful: the four most conservative Supreme Court justices, and numerous others on lower courts, have either been members of the society or are closely associated with it. Despite the society's assertion that "law schools and the legal profession are currently strongly dominated by a form of orthodox liberal ideology", there was no such equivalent organization on the left during the post-war years when the supposed liberal domination of the federal courts arose. If there was in fact a progressive trend it was not the result of a concerted effort by a small but determined minority, but the natural result of broad changes in society. Who today would seriously suggest that Dred Scott or Plessy v. Ferguson was right, but Brown v. Board of Education was wrong? By contrast, the conservative slant of the court in recent decades does not necessarily reflect the tilt of the country but the determined will of a political movement. It is one thing to fall short of the ideal of perfectly impartial justice, quite another for the ideal to be subverted intentionally.

There are undoubtedly many Americans who sympathize with the conservative decisions of the Roberts court, just as there were many who reviled Chief Justice Earl Warren in the 1950s as a traitor to his fellow Republicans. Americans are demonstrably more socially progressive today than they were a half century ago, which made the Warren court either out of step with the general population or prescient (or both). Justices are right not to bow to public opinion in the interpretation of the Constitution, nor must they bury their own deeply held views to accommodate some ethereal notion of judicial purity. But these considerations are beside the point. The justices do not operate in a vacuum. If they introduce the vernacular and distortion of politics into the language and practice of the court, they can hardly be surprised if they are seen to compromise the appearance of impartiality, at the very least.

Opponents of The Affordable Care Act like to point out that it was passed by Congress on almost entirely partisan lines, whereas Social Security, Medicare, the Civil Rights Act and most other pieces of landmark legislation of the last century had strong bipartisan support. In other words, they contend that only a solid majority indicates whether politicians are doing the right thing or expressing the will of the people. Since fair is fair, it must be noted that the Supreme Court was unanimous on Brown, and that even Griswold v. Connecticut and Roe v. Wade, that bane of conservative existence, were decided by votes of 7-2. The court's legitimacy, needlessly squandered in Bush v. Gore and dozens of other closely decided cases, cannot be resurrected with a vote on any single case, but it will surely sink even further from view if the health care law is decided on a vote of 5-4. Rightly or wrongly, such a decision will only confirm the public's already established opinion that the court is in fact an instrument of its political masters. If the people thus lose faith in their courts' ability to rise above the political fray, the future of health care in America will be the least of our troubles.

April 10, 2012


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