It was an extraordinary moment in 2018 when Chief Justice John Roberts issued a stinging public rebuke of the president. I cannot recall anything like it happening before. The chief justice has tremendous respect for each of the branches of the federal government and the officials who lead them. He is what political scientists call an “institutionalist” — someone who believes that the preservation of the institutions of our society is vital and that critics of their performance should be careful not to undermine their role in American life.
On top of that, Roberts is an amiable man who favors compromise and consensus because he respects the views of others. And yet when President Donald Trump cavalierly dismissed a judicial decision against his administration because it had come from an “Obama judge,” Roberts responded immediately and forcefully: “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 was reminded of the chief justice’s claim during the firestorm of criticism triggered by the recent leak of a draft opinion written by Justice Samuel Alito that favors overruling Roe v. Wade. Pundits, commentators and politicians critical of Alito’s conclusion and the support it had garnered among four of his colleagues have accused those justices of pursuing a partisan agenda. To these critics, the justices are partisans in robes, mere political hacks.
Which reminds me of H.L. Mencken’s puckish observation that for every complicated matter there is a simple solution — that is wrong. The simple answer critics give when they dislike a decision of the Supreme Court is that the justices are doing the bidding of the party that supported their appointment. That simple answer is profoundly wrong and does great damage to our constitutional order.
Careful study of the work of our federal judiciary shows that although judges are not perfect, most of the time most of them live up to the oath each takes to be impartial.
A word about that oath: I teach a seminar at Harvard Law School on the role of a judge under the Constitution. Our readings cover in detail the debate over whether a judge should view the Constitution as a living document that should be interpreted to reflect the changing sensibilities of the American people or as a charter that protects rights that can only be added to or taken away by “We, the People” amending the Constitution through our elected representatives, and not by judges.
Our study of this debate takes up much of the course, but before we jump into that debate, we spend several days studying the oath of office required of every federal judge. That oath was created in the initial act of the First Congress and requires each judge to pledge to the American people and to God that he or she will be impartial and will not decide cases to favor partisan ends.
Never once in my 15 years as a judge on the U. S. Court of Appeals for the D.C. Circuit did I see a colleague cast a vote that I thought was tainted with partisanship. The disagreements were always over what the law requires and not our preferred political outcomes. Cynics may dismiss my report as naïve, delusional or even deceptive, but they would be wrong. I was in the “room where it happened.” I’m not naïve. I’m not delusional. I’m not a liar. I’ve never been a Supreme Court justice, so maybe things work differently there? The chief justice claims they don’t. And Justice Stephen Breyer, a political progressive appointed by a Democratic president, agrees with the chief.
I know the chief justice. I know Justice Breyer. Neither is naïve. Neither is delusional. Neither is dishonest.
Of course, a citizen can’t rely on the pundits’ descriptions of judicial decisions to understand what is at work. As Justice Amy Coney Barrett pointed out recently, the best way to determine whether a judge is a partisan, as the critics claim, or keeping her oath of impartiality, as the chief justice and Breyer assert, is to read her written opinions. That’s hard work. For example, the draft opinion by Justice Alito that was leaked to the public last week is 98 pages long. I’m a slow reader. That’s three hours of work for me. And yet how can I conclude the opinion is in error or is correct, is driven by a partisan agenda or a faithful effort to follow the law, unless I roll up my sleeves and do the hard work of studying it for myself?
I was a member of the President’s Commission on the Supreme Court, which was given the task of describing the current debate over the role of the Supreme Court in American society. Most observers viewed the creation of the commission as an effort by President Joe Biden to create a forum for the debate over whether the number of justices on the Supreme Court should be increased. For a year, the members of the commission studied the issue intensely. We read books and articles. We took testimony from experts and comments from any with enough interest in the topic to write. I joined the commission convinced that increasing the number of justices on the Supreme Court would be a dangerous gambit. Nothing I read or heard in the year that followed changed my view. Here’s why.
Those pressing for expansion believed judges were partisans in robes. They didn’t believe the claim of the chief justice, Justice Breyer or me that judges decide cases based on the law and not politics. They were dissatisfied with some of the decisions of the current Supreme Court, and they assumed that they could change those decisions by adding justices who had partisan political ends in mind.
I’m not pleased with all of the decisions of the Roberts court either. I was overturned by the court in a landmark case that eviscerated a key component of the most significant voting rights legislation in our nation’s history. I think the court gave short shrift to the power given to Congress after the Civil War to root out racism in the way we conduct elections. But I don’t attribute the court’s approach to an effort to hurt Democrats and help Republicans because I know the justices and I know they take seriously their oath to be impartial. They had a different view than do I about the reach of the 15th Amendment. Such differences over the meaning of the law, not competing partisan allegiances, explain our disagreement.
I was honored that Judge Ketanji Brown Jackson asked me to introduce her to the Senate Judiciary Committee at the start of her historic confirmation hearings. I was well-acquainted with her work as a judge on the federal district court in Washington, D.C., because I sat on the court that heard appeals from her rulings. Pundits and reporters commented on the novelty of a political conservative appointed by a Republican president endorsing a political progressive nominated by a Democratic president. I’m happy if my full-throated support of Jackson’s appointment was a strike against hyperpartisanship, but pushing back against political tribalism wasn’t my main purpose.
Speaking up for an impartial judiciary was.
As a judicial conservative who believes that a judge plays a limited role under the Constitution, I may end up disagreeing with Jackson on any number of matters, and yet I do not believe for a moment that her decisions will be driven by an interest to advance the policies of political progressives. They will be driven by what she believes the law requires.
The American people have good reason to have confidence in our judicial system. Those who attack our federal judges as partisans for the pursuit of their own political gain do great damage to the Constitution. Jonathan Haidt warns of “a catastrophic failure of our democracy.” The reason? “We just don’t know what a democracy looks like when you drain all trust out of the system.”
In the years following the collapse of the Soviet empire, I had the good fortune of traveling throughout Eastern Europe and meeting with courageous reformers who risked their lives to establish the rule of law in their countries. They were eager to learn from the American experience, especially about how to create and maintain an impartial judiciary, which they believed was the crown jewel of American democracy.
As Benjamin Franklin observed at the conclusion of the Philadelphia convention that drafted our Constitution, the rule of law is a fragile possibility that is difficult to keep in the best of times. We are not living in the best of times. All the more reason to stop the partisan attacks on a judiciary that has served our Constitution imperfectly but well.
Thomas B. Griffith is a former federal judge on the U.S. Court of Appeals for the D.C. Circuit and a fellow of the Wheatley Institution at Brigham Young University.