Day 22: Courts Far Less Partisan Than Trump Implies

In recent days, Donald Trump and many on the conservative right have implied that the federal courts of the nation are split predominately on ideological lines or are biased in some way (or worse: that they should blindly follow his executive orders). The implication seems to be that judges appointed by Democrats are likely to uphold decisions by Democrats and judges appointed by Republicans are likely to reverse those decisions, and vice versa.

Not only is this rhetoric dangerous, it’s wrong.

There’s a lot more uniformity in decisions than most realize.

Let’s start at the beginning to understand why partisanship or deference to the party that nominated a judge is an overrated opinion.

To oversimplify it, federal district judges are selected by the president from a large pool of qualified individuals: predominately accomplished, practicing lawyers and state-court judges. A president is likely to select judges that have argued cases or ruled on matters favorably to that president’s position.

If the judge is confirmed by the Senate — and the fights over district court judges (and appellate judges) is generally substantially less contentious than Supreme Court nominees — then that judge is appointed for life.

Appellate judges are typically plucked from the district level, but can also be accomplished lawyers or state-court judges. Generally speaking, federal circuit court judges (appellate judges) know they have attained the highest judgeship they will ever receive.

Supreme Court openings happen rarely, and comparing the number of openings to the number of judges, most appellate judges know they will never be considered, much less nominated for a Supreme Court seat.

Jurists have little motivation to be loyal to a political party. Their opinions are far more broadly shaped by their interpretation of the laws at hand. Judges tend to be more concerned about being reversed on appeal than they do political ideology.

The numbers do not back this up the argument that judges decide cases solely or even predominately on ideological lines.

Looking at Supreme Court decisions, most cases are decided with agreement between liberal, conservative and moderate judges.

Per SCOTUSblog.com, the six year average from 2009 through 2014 saw:

  • 9–0 decision 49% of the time
  • 8–1 decision 8% of the time
  • 7–2 decision 11% of the time
  • 6–3 decision 11% of the time
  • 5–4 decision 21% of the time

(The 2014 term was the last year that the Court had a full make-up of nine justices for the whole term)

In 2014, Justice Ruth Bader Ginsburg — largely seen as the most liberal member of the Court — and the late Justice Antonin Scalia — largely seen as the most conservative member of the Court at the time (though Justice Clarence Thomas may have actually held that position) — agreed on 58% of all decisions. (Ginsburg and Thomas agreed on 55% of all decisions.)

Of course the Supreme Court is going to have 5–4 decisions too, though they are relatively rare. When they do happen, decisions can be split by liberal or conservative ideology, with Justice Anthony Kennedy frequently providing the tie-breaking vote.

But those decisions tend to happen because the justices have philosophical differences in how the law is properly applied and how broad or narrow certain protections are, not because they’re beholden to a political party.

The breaking from traditional voting blocs or principles happen all the time, though not necessarily in the social issues questions that tend to dominate news.

Perhaps no case illustrates this point better than Florida v. Jardines. In Jardines, the issue was whether a police dog sniffing around a home that was a suspected marijuana grow house constituted a search which required a warrant under the Fourth Amendment. The Court found that a warrant was required and distinguished its opinion versus prior holdings, including one allowing police dogs to sniff around a motorist’s pulled-over car without policing needing a warrant.

The Court split on odd ideological lines: the three most liberal justices (Ginsburg, Elena Kagan and Sonia Sotomayor) were joined by the two most conservative justices (Scalia and Thomas). The four other justices — seen as more moderate — all thought a warrant was required.

Just because justices were nominated by different presidents or their judicial philosophies are different, doesn’t mean they don’t often end up at the same place.

Jardines isn’t an aberration. Hollingsworth v. Perry, a same-sex marriage case from California, was disposed of on procedural grounds. On the losing side of a 5–4 decision, Sotomayor found herself with moderate Kennedy and conservatives Samuel Alito and Thomas.

Justices have their views shaped by their own view legal tenets used to interpret and rule on legal issues.

Are politics completely absent from the judiciary or their decisions? No. But, most political implications are injected by the process that requires nomination by the president and confirmation by the Senate, as well as pundits and those less well-versed in the law (for example, the current president).

Judges are largely apolitical and frequently cross over expected or traditional liberal or conservative ideology to rule on issues before the court.

22 days in, 1440 to go

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