Let’s dispel with this fiction that judges are just like umpires.
Last week, President Obama published a brief piece on SCOTUSBlog explaining what he plans to look for in his Supreme Court nominee. It was a fairly predictable mix of the standard rhetoric president’s break out when they are tasked with picking a justice, combined with one especially revealing sentence highlighting the limited role Obama believes the one unelected branch of government should play in a democracy.
On Tuesday, Senate Judiciary Chair Chuck Grassley’s (R-IA) published a rival piece in the same outlet laying out his own vision for the Supreme Court. In it, Grassley takes issue with Obama’s description of what a judge will do in cases “in which the law is not clear.” “There will be cases,” the president acknowledges, “in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment.”
The late Justice Antonin Scalia, Grassley claims, should instead be Obama’s model. The senator praises Scalia for his “understanding of the role of a Justice as adhering to the rule of law, which he famously defined as a law of rules,” and accuses Obama of preferring a judge who will “force any other American to adhere to his or her own moral views or life experiences, untethered to law.” A Supreme Court justice’s only job, according to Grassley, is to apply the “impartial, rules-based, and textual meaning of the Constitution.”
This sure sounds great! And there’s a reason why both conservative Chief Justice John Roberts and liberal Justice Sonia Sotomayor spent their confirmation hearings offering a similar vision of the judge’s role. (Roberts famously compared himself to an “umpire.” Sotomayor’s insisted that “the task of a judge is not to make the law — it is to apply the law.”) There is no shortage of polling showing that Americans want judges who reach neutral, objective legal conclusions, rather than writing their own values into the law.
But there’s also a big flaw in this reasoning. The problem with Grassley’s (and Roberts’, and Sotomayor’s) framework is that, in many cases, a single, discernible, and objective legal rule does not exist.
Our Vague Constitution
Consider the text of the Constitution, which is simply riddled with ambiguous phrases open to many, many different interpretations:
- What are the “privileges or immunities of citizens of the United States” that are protected by the Fourteenth Amendment?
- What makes a search or seizure “unreasonable” under the Fourth Amendment?
- Which punishments are “cruel and unusual” under the Eighth Amendment?
- If the government wants to deny someone “liberty,” how much “process” is “due?” under the Fifth and Fourteenth Amendments?
- What is a “public use” of private property, as that term is used in the Fifth Amendment?
- How should the United States guarantee a “republican form of government, as is required by Article IV of the Constitution?”
- What does Article I mean by the “general welfare of the United States?”
- Which laws are “necessary and proper” for carrying into effect Congress’ enumerated powers, as that term is used in Article I?
As it turns out, applying the “impartial, rules-based, and textual meaning of the Constitution” isn’t such an easy task.
A Case Study
Take the question of whether the Constitution prevents the government from discriminating on the basis of sexual orientation. The answer to this question depends on how a judge reads the Fourteenth Amendment, with its provision that no state may “deny to any person within its jurisdiction the equal protection of the laws.”
Like many of the provisions listed above, however, this Equal Protection Clause is extraordinarily vague. While it clearly prohibits some forms of discrimination, it does not specify which kinds of discrimination are prohibited. Any reasonable judge will tell you that this clause prohibits the government from firing someone because they are black and does not prohibit firing someone because they are bad at their job — that is, the Constitution prevents race discrimination but not discrimination against incompetent people — but there is nothing in the text of the Constitution that draws such a distinction.
To understand the Equal Protection Clause, a judge has to look beyond its text and first understand its history. The Fourteenth Amendment was one of a trio of amendments ratified after the Civil War to end the old Confederacy’s legacy of racial oppression and extend the full rights of citizenship to all Americans regardless of race. Accordingly, the Equal Protection Clause should first and foremost be understood to prevent race discrimination.
Had the framers of this amendment intended it to only prevent racial discrimination, however, it is unlikely that they would have drafted it using such broad and open-ended language. Accordingly, the Supreme Court has held that the Equal Protection Clause is primarily concerned with discrimination that is similar in character to racism. Groups that have historically been subject to discrimination with little basis in their ability to “perform or contribute to society” enjoy heightened protection under the Constitution, while other groups (such as incompetent government workers) do not enjoy the same protection.
In the 1970s, for example, the Court handed down several decisions recognizing that women have historically experienced such irrational discrimination, and thus the Equal Protection Clause applies with particular force in gender discrimination cases.
The argument for protecting sexual minorities from discrimination is similar to the argument for preventing sexism. Like women, gay men, lesbians and bisexuals have historically been subject to discrimination that has nothing to do with their ability to “perform or contribute to society.” Police rounded up tens of thousands of gay men for the supposed crime of asking for sex. The federal government refused to hire gay employees, citing reasons such as “the revulsion of other employees by homosexual conduct and the consequent disruption of service efficiency.” Until very recently, same-sex couples were not even allowed to get married in most states. It is, thus, very difficult to argue that these individuals should not enjoy heightened protection under the Equal Protection Clause.
Yet, however a judge decides this particular question, it’s important to note that they must do far more than apply the “impartial, rules-based, and textual meaning of the Constitution” that Grassley refers to. The Constitution’s text doesn’t provide much guidance at all on how judges should treat discrimination on the basis of sexual orientation. Rather, to answer this question, a judge must have a firm command of constitutional history, a robust understanding of legal doctrines and how they developed over time, an ability to analogize one form of discrimination to another, and a fairly robust understanding of gay history as well.
And the judge must also engage in another kind of reasoning as well. The determination that anti-gay discrimination (or, for that mater, sexism) is sufficiently similar in character to racism that the Equal Protection Clause steps between the governed and their government also requires a values judgment — just as it would also require a values judgment to determine that women or sexual minorities have not experienced past discrimination that is sufficiently irrational as to trigger heightened protection under the Constitution. As much as judges ranging from Scalia to Roberts to Sotomayor profess to be neutral arbiters of the law, the text of the Constitution and the doctrines developed over decades of constitutional interpretation only takes a judge so far. As President Obama said in his SCOTUSBlog piece, “there will be cases in which a judge’s analysis necessarily will be shaped by his or her own perspective, ethics, and judgment.”
Having confronted the uncomfortable truth that many legal questions are uncertain and potentially even open-ended, it’s important to note that most questions in the law are easy. There is no ambiguity, for example, to the Constitution’s passage stating that the president shall “have attained to the age of thirty five years,” or the provision limiting a presidential term to a “term of four years.” Similarly, when laws are ambiguous, the Supreme Court has developed doctrines instructing judges on how to resolve those ambiguities in ways that minimize the likelihood that the judge will substitute their own preferences for a neutral legal principle. Most cases are, indeed, rules-based and will be decided the same way by any fair judge.
But it matters a great deal whether the next justice is chosen by someone who thinks like President Obama or someone who thinks like Senator Grassley. Chief Justice Roberts and Justice Sotomayor, after all, both said very similar things at their confirmation hearing, but only one of them voted to gut the Voting Rights Act, and only one of them supported marriage equality.
Chuck Grassley is unlikely to be the last person to claim to claim that judge should simply apply an “impartial, rules-based, and textual meaning of the Constitution.” Indeed, if past is prologue, there is a good chance that Obama’s own nominee will say something similar before this confirmation fight is over. Both liberals and conservatives will, at times, find it useful to associate themselves with this falsehood for purely strategic reasons.
But it is a falsehood nonetheless. As much as we’d like to believe that the law is clear, that simply is not true.