Judges and the Political Fray

July 18, 2016

            The New York Times and CNN recently ran interviews with Justice Ruth Bader Ginsburg where she was outspoken in her opposition to the candidacy of Donald Trump. In her New York Times interview, Ginsburg said that she could not imagine what the country would be like with a Trump presidency and the mere possibility made her want to move to New Zealand.

            To take partisanship out of it, imagine if the interviews were instead with a conservative Supreme Court justice who remarked that the thought of Hillary Clinton’s election made him consider moving to New Zealand.

            Regardless of the candidate at which they are directed, do we want our Supreme Court justices to publicly comment on candidates for political office? Some have criticized Justice Ginsburg’s comments because the federal courts, and especially the Supreme Court, should appear to the public as being above the political fray. Under this reasoning, Justice Ginsburg has undermined confidence in the Supreme Court because she has made it appear more like the other political branches of government.

            Those arguments have some validity, but they omit an important point. Our judicial officers not only should appear to be above the political fray, they should do their best to actually be above the political fray. My first job out of law school was clerking for a federal appeals court judge. One day we were in chambers working on a case that was before the court, and I started to comment about another judge’s likely vote given that he was a conservative. The judge cut me off in mid-sentence, saying “We do not think that way in here.”

            He was right. Judges have the same mental biases and reasoning shortcuts we all have. As humans, we are hard-wired to use these heuristics, and as a novice lawyer that is what I was doing. Because I thought the “conservative” position was preordained in this case, I did not need to reason any further. My vastly more experienced boss was much better at avoiding these logical misfires and therefore much less likely to decide a case based on his subtle and often subconscious biases.

            I am not suggesting that judges have a super-human ability to completely overcome their political leanings and other preconceptions about the world. Many studies confirm that ideology affects judicial decision making. These studies, however, do not find that ideology explains all of judicial decision making let alone support the idea that judges should just throw up their hands at the futility of trying to overcome ideology. Indeed, there are some studies that suggest that more legal experience leads one to be less likely to be influenced by ideology when doing legal decision-making tasks.

            When one looks at our sometimes arcane rules for court procedures or even the physical trappings of our court buildings, it is tempting to conclude they are there only for the outsiders – to impress upon the public the majesty and neutrality of the court system. That is only part of the story. They also are there to impress upon the judges that society relies on them to do their best to be rational decision makers, not controlled by their passions.

            The Judicial Conference of the United States has adopted the Code of Conduct for United States Judges. It states that a judge “should not . . . publicly endorse or oppose a candidate for public office.” In making her remarks, Justice Ginsburg did not violate this ethical code because it does not apply to Supreme Court justices. Whether Supreme Court justices should be an exception to a code of ethics that applies to every other federal judge is a subject for another time. But the code does capture our aspirations for our judges – among them a call not just to appear to be above the political fray but to strive to actually do it. In making her remarks, Justice Ginsburg did not live up to that aspiration.