The Supreme Court and beyond, how partisan are America's judges?
| Little Rock, Ark.
One September Saturday, Judge Wendell Griffen swaps his robes and courtroom for a crisp suit and a stage at a conference about mass incarceration. He鈥檚 the penultimate speaker, and he鈥檚 about to talk about the death penalty.
鈥淏ut first a disclaimer,鈥� he says, and brings up a slide. The crowd, full of like-minded activists, laughs.
鈥淣o opinion, statement, or conclusion in this presentation,鈥� the slide reads, 鈥渞epresents the position of the Arkansas judiciary or any other person serving in the judiciary 鈥� whether in Arkansas or elsewhere.鈥�
Why We Wrote This
The nomination of Judge Brett Kavanaugh has exposed questions of judicial partisanship like never before, legal experts say. Judges have never just mechanically applied the law, but is how they use their discretion changing?
Judge Griffen, who serves in Arkansas鈥� 6th Judicial District, doesn鈥檛 occupy the most glamorous or powerful position in the US judiciary. Still, his decision to join an anti-death penalty rally last year understandably raised eyebrows, not least at the state supreme court, which permanently banned him from hearing death penalty cases last year.
But Griffen points out that judges have free speech rights too 鈥� and in an ongoing lawsuit, he claims the state supreme court has violated them.
Griffen is an outlier, to be sure. Few judges are willing to air their views publicly on divisive social and political issues. And, observers say, the vast majority of cases decided by judges 鈥� including Griffen, and even the United States Supreme Court 鈥� do not involve divisive issues. But 鈥渢he law is not set in stone as people think it is,鈥� says Laurie Levenson, a professor at Loyola Law School in Los Angeles. 鈥淛udges are human beings, and I think judges know the law needs changes and it鈥檚 part of their role to make those changes.鈥�
This reality also means that judging comes with the trappings of politics. While much of the job is simply applying laws to settle disputes, it on occasion involves discretionary power that can affect policy. Where judges are supposed to differ from politicians is in exercising their political power in a nonpartisan manner, not letting ideology influence their decisions.
The federal judiciary has become more partisan, however, including at the Supreme Court, which opened its new term Monday. There, the most divisive cases often see Republican- and Democratic-appointed justices voting in blocs. President Trump has said that may be 鈥渢he most important thing we do.鈥�
Mr. Trump鈥檚 nomination of Judge Brett Kavanaugh to the high court has exposed this partisanship like never before, many experts say. In to the Senate Judiciary Committee on Thursday, Judge Kavanaugh described the sexual assault allegations, which he denies, as 鈥� a calculated and orchestrated political hit鈥� fueled by anger against Trump鈥檚 election victory and 鈥渞evenge on behalf of the Clintons.鈥�
His testimony 鈥渟ounded like something we鈥檝e never heard before鈥� in a Supreme Court confirmation hearing, says Professor Levenson.
鈥淗e can be angry, he can be frustrated, he can say, 鈥楾his is too political a process,鈥� but he sounded more like a political candidate than a judicial nominee,鈥� she adds. 鈥淲e鈥檝e all known [confirmations] are a political process, but the fact that he felt free to inject so many partisan references into his remarks I think says that this process has changed.鈥�
Speaking at the the day after the hearing, conservative commentator Bill Kristol said the institution of the court 鈥渋s damaged in a way that it really hasn鈥檛 been鈥� before.
鈥淲e鈥檝e had people who鈥檝e been quietly partisan, people who鈥檝e gone over the edge a couple of times in expressing their views. We鈥檝e never quite had this,鈥� he added.听鈥淭he courts are pretty [respected], that鈥檚 what polls show and that鈥檚 what I personally feel. I do worry therefore about jamming through Kavanaugh on a purely partisan vote. I think there will be some damage done.鈥�
In short, judicial behavior and decisionmaking are now under intense scrutiny. The tension between applying the law and deciding when to change it has become especially acute. For the general public it raises questions: How partisan has the judiciary become? And how do judges separate their personal views from their decisions in cases? For legal scholars it raises concerns.
鈥淔irst we had this idea put forward by politicians that good judges mechanically apply the Constitution and there鈥檚 no judicial discretion,鈥� says Kermit Roosevelt, a professor at the University of Pennsylvania Law School. 鈥淣ow the public is going to think all the judges are political, and neither of those is healthy.鈥�
'Law is a value construct'
There are important nuances to consider here. Federal judges have become more partisan, in part because they are all confirmed through the highly polarized US Senate confirmation process and because they hear more contentious cases, experts say.
鈥淎t the federal level the president, through his advisers, is able to try to fine-tune the ideological balance that they want,鈥� says Bill Raftery, a senior analyst at the National Center for State Courts.
鈥淥ver decades the system that鈥檚 in place at the federal level has been moving in one direction,鈥� he adds, 鈥渁nd that appears to be a direction that鈥檚 much more partisan and much more combative over judicial appointments.鈥�
State court judges like Griffen, who can reach the bench in dozens of different ways and generally hear more routine cases, are largely immune to this trend.
But all judges are subject to similar ethical obligations, and Griffen has been testing his ethical limits.
鈥淭here are some people who choose to believe that judges do not have values other than the values we pronounce or declare in our rulings, or that the values we have should somehow remain secret, unknown,鈥� he says. 鈥淚鈥檝e never bought into that.鈥�
It鈥檚 the day after the mass incarceration conference, and Griffen is sitting in his office at the New Millennium Church in the gray slacks and a yellow and brown dashiki he wore while delivering his sermon that morning. Perhaps unsurprising for a preacher, he speaks comfortably, eloquently, and at length about why he鈥檚 鈥渘ever bought into that.鈥�
He speaks about Brown v. Board of Education, the landmark US Supreme Court decision declaring segregation unconstitutional under the 14th Amendment鈥檚 equal protection clause. Not because the church is four miles from Little Rock Central High School, the scene of forced desegregation four years after Brown that led to the high court reaffirming its ruling, but because it exemplifies his view that 鈥渓aw is a value construct.鈥�
鈥淭he text of the 14th Amendment [when Brown was decided] was the same language as in 1868 when it was ratified by Congress,鈥� he says. 鈥淲hat changed was the notion of what the people who understand what that law means thought is right, and I think that鈥檚 healthy.鈥�
鈥淚t鈥檚 important for we judges at every stage to hold that tension inside us and wrestle with it,鈥� he adds. 鈥淚 think it鈥檚 very dangerous for us to pretend the tension doesn鈥檛 exist.鈥�
Civil rights era and the rise of partisanship
It took four years for the Brown ruling to take effect in Little Rock. In rural Delight, Ark., where Griffen grew up, it took another six. Watching future Supreme Court Justice Thurgood Marshall and other black lawyers fight for and win civil rights in the courtroom, he says, inspired him to go to law school.
It was around the civil rights era when the federal judiciary started to become more partisan. And it has largely stayed that way ever since, according to research by Robert Carp, a political scientist at the University of Houston who has been studying the for about 50 years.
The American judiciary is designed to be the least powerful but also the least accountable of the three branches of government. Federal judges have lifetime appointments, while state judges have longer terms than most other office-holders . For this reason, public confidence in the judiciary鈥檚 fairness is critical to its strength, observers point out. Partisanship is a direct threat to that confidence.
From 1934 to 1966, Dr.Carp 听there was very little difference between how judges appointed by Republican presidents and judges appointed by Democratic presidents ruled. But starting in 1967, Democratic judges were听鈥渃onsistently more liberal than their Republican counterparts.鈥�
Up to that point, the ideology of individual judges simply hadn鈥檛 mattered that much to presidents, he says. Lyndon Johnson, however, was aggressive in appointing liberal judges who would strengthen his push to broaden civil rights. He was followed by Richard Nixon, who on the Supreme Court being too liberal and then confirmed more ideologically conservative judges.
For probably 90 percent of the cases federal district judges hear, 鈥渋t doesn鈥檛 make any difference whether the judge is Republican or Democrat,鈥� Carp says.
But it鈥檚 in that small number of cases 鈥� typically ones that raise ambiguous or unprecedented questions 鈥� where the particular views and ideologies of a judge do come into play. Those cases can affect large numbers of people, particularly as you climb the hierarchy of the federal judiciary to the Supreme Court, and have the biggest implications for public confidence in the courts.
鈥淚t鈥檚 not always malicious.鈥� [Judges] have to do the best they can with an [ambiguous] situation,鈥� says Carp. 鈥淚f it were that obvious you could just have a computer do it, but there鈥檚 a human factor in it.鈥�
鈥淚f it weren鈥檛 common knowledge what difference it makes based on what their values are there wouldn鈥檛 have been all this chaos over the Kavanaugh hearings,鈥� he adds.
The Supreme Court seems to receive more media coverage and public attention than every other US court combined. While that is justified to a degree 鈥� its decisions apply nationwide, and it is the only court with the power to overturn precedents 鈥� federal courts of appeal have much more power than many people realize. And it is at this level that Trump could have the most influence.
The Supreme Court takes fewer than 100 cases a year, so the 13 federal appeals courts often have the final word on interpreting federal law. Trump has appointed 26 judges to these courts so far, a record pace, with many of them given the seal of approval by the conservative Federalist Society. Since most of those appointments have replaced other Republican-appointed judges, Trump鈥檚 ideological imprint on the appeals courts has been . But there is evidence that appeals courts have become more partisan in recent years, and that Trump鈥檚 nominees will continue, if not deepen, this trend.
In 2007, Judge Carolyn King 鈥� who at that point had served for 28 years on the US Court of Appeals for the Fifth Circuit, including a seven-year term as chief judge 鈥� gave in which she described the rise of 鈥渃lique voting鈥� in appeals courts, voting 鈥渨ith or at the direction of other like-minded judges simply because they share common ideological objectives.鈥�
Hearing upwards of 450 cases a year, she said, it would be rare for more than one judge in a three-judge panel (which is how appeals courts hear most cases) to have a deep knowledge of the record and the law in any one case.
Thus 鈥渁 judge who has been selected primarily for his perceived predisposition to decide cases in accordance with a particular political ideology may be consciously or subconsciously influenced to decide cases in accordance with that ideology,鈥� she added, 鈥渞ather than 鈥� an impartial and open-minded assessment of what the law actually is.鈥�
鈥淎fter three decades of judicial appointments based on partisan ideology, it should come as no surprise that clique voting happens, albeit infrequently, in more than one (but, I think, not many)鈥� federal appeals courts, she continued.
While most experts think it is still too early in their tenures to know just what effect Trump鈥檚 appointments will have on partisanship in the judiciary, anecdotal evidence shows they have strong conservative views on several contentious social and political issues.
- Last year Judge Amul Thapar, appointed to the Sixth Circuit Court of Appeals, joined upholding the practice of a Michigan county board to open meetings with a prayer and ask audience members to 鈥渁ssume a reverent position.鈥� (The Fourth Circuit had ruled the other way in a similar case last year.)
- Judge Amy Coney Barrett, appointed to the Seventh Circuit Court of Appeals, the full court rehearing a panel decision dismissing a lawsuit against an auto-parts store over allegedly segregating its workforce.
- And Judge James Ho, appointed to the Fifth Circuit, described abortion as 鈥渁 moral tragedy.鈥�
Like any judge, the vast majority of cases heard by appeals court judges are nonpartisan and straightforward and don鈥檛 involve contentious social and political issues. Even the Supreme Court, which hears only the tough cases lower courts can鈥檛 resolve, rules unanimously far more than many realize 鈥� in 36 percent since 2000, more than any other result.
But split decisions 鈥� particularly when they split 5-to-4 along partisan lines, as several high-profile decisions from public union fees to Trump鈥檚 travel ban did last term 鈥� are what capture public attention.
鈥淛udges differ in terms of what their ideological perspectives are. That鈥檚 true at the federal level and it鈥檚 true at the state court level,鈥� says Mr. Raftery. 鈥淭he vast majority of those have no great social or political implications.鈥�
鈥淭he vast majority of cases filed in the United States are [also] filed in state courts,鈥� not federal courts, he adds, 鈥渁nd the vast majority of those have no great social or political implications.鈥�
The case of a father, son, and a backhoe
At one bench trial Griffen heard in September, social and political implications would have been impossible to find even with an electron microscope.
Two years ago, Bobby Wade Jr. sued his son, Scotty, after he refused to follow an eviction order. Scotty had breached his rental agreement by not properly maintaining the property, his father claimed. Scotty filed a countersuit alleging not only that it was his father who had breached the agreement, but also that his father promised him the property and that he was the rightful owner of a backhoe.
After hearing testimony from four members of the Wade family, another of Bobby鈥檚 tenants and two of Scotty鈥檚 friends, Griffen ruled in favor of Bobby on every claim.
鈥淚 don鈥檛 have the ability to make anyone feel good about my decision,鈥� he said. 鈥淥ne-hundred percent of the time someone walks out of my court upset, but everyone is entitled to their day in court, and I hope you felt you got that today.鈥�
A death penalty case it was not. But those cases rarely came to Griffen 鈥� until last year at least.
The state of Arkansas had not executed anyone between 2005 and April 2017 when, with a key lethal injection drug expiring at the end of that month, it scheduled seven executions over 10 days. On Good Friday, after a complaint from the distributor, Griffen issued an order temporarily blocking the state from using one of its lethal injection drugs. A few hours later he attended an anti-death penalty rally outside the governor鈥檚 mansion, tied with rope to a cot 鈥渋n solidarity with Jesus.鈥�
Three days later the Arkansas Supreme Court banned him from presiding over future death penalty cases, or cases concerning the state鈥檚 method of execution. State lawmakers called for him to be impeached.
Griffen did not only protest against the death penalty. A few days earlier he wrote 听that the premeditated killing of defenseless persons, even those convicted of murder, 鈥渋s not morally justifiable.鈥� He points out, however, that three weeks before his protest he from death row inmates appealing their method of execution because an earlier state supreme court ruling compelled him to. (He did also call the higher court鈥檚 ruling 鈥減lain and troubling.鈥�)
鈥淚 think it鈥檚 a disqualifier ... to act like your thoughts are somehow irrelevant to how you rule,鈥� he says. 鈥淲hat you have to decide is how you are going to shepherd your thoughts so that your personal views are not the controlling factors on the outcome of a case.鈥�
This philosophy reaches to the highest levels of the US judiciary. The late Justice Antonin Scalia regularly defended his vote upholding the right of protesters to burn the American flag even though he disagreed with it. 鈥淚f it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,鈥� he said in 2015. 鈥淏ut I am not a king.鈥�
The expectation that judges will separate their personal views from their legal rulings is becoming more acute as experts say that the element of surprise 鈥� where a judge may rule counter to their individual ideology 鈥� is disappearing, at least when it comes to that small minority of cases that deal with divisive issues. That trend crystallized this summer with the retirement of Anthony Kennedy, for decades the Supreme Court鈥檚 鈥渟wing鈥� justice, some experts say. His retirement is 鈥渢he farewell to even the pretense of dispassionate, nonpartisan jurisprudence鈥� on the high court, Garrett Epps wrote . Dahlia Lithwick that his departure is 鈥渁 bracing reminder that there is no longer [an ideological] center鈥� on the court.
Ideology may only factor into those rare cases that concern divisive issues, whether they be an abortion case before the Supreme Court or a lethal injection case in an Arkansas circuit court, but it鈥檚 those cases on which faith in the judiciary is increasingly staked. In those moments, Griffen believes people need to have faith in the judges who comprise the judiciary.
鈥淥ne may have a viewpoint about a subject matter controversy without being partial to the litigants in a controversy.... That鈥檚 what our system turns on,鈥� he says. 鈥淭rust is fundamental, and if we do not trust our processes, if we distrust our processes, we鈥檙e not going to trust the people.鈥�
Correction:听This story has been updated to correct where Griffen grew up.
