When Judging Judges (Seductive Missteps)

One of the loveliest challenges about the law is that everyone has a different vision of what it is. At the most abstract level, people disagree about how law gets its authoritative force. Legal positivists believe that law gets force when officials follow the social custom for making an enactment authoritative, while natural law theorists believe that law’s authority is limited by rights we are owed based on our humanity. Scholars throughout American history have also disagreed about the role of the judge and the appropriate parameters of legal reasoning and argument. Each age brings new views about the life of the law- what it is, how we should approach it, and which factors should affect judicial decision-making. I find it both delightful and sometimes maddening that everyone has a different vision of what judges do and how we should assess judicial opinions. Accepting a diversity of approaches to jurisprudence, broadly defined, here are my biggest pet peeves in evaluating judges. I believe these missteps obscure the complexity of the law and the nature of the judicial exercise. These errors also add cynicism and partisanship to the evaluation of judges, both of which may make judging worse, even if some cynicism and partisanship is either necessary or desirable.

  • Making the result of an opinion the essence of the judge’s contribution:

Although the result of a decision matters, it is unfair and inaccurate to frame the judge as voting for that result. For example, many judges and Justices are personally opposed to the death penalty but unwilling to invalidate capital punishment as a constitutional violation, due to their reading of the Constitution, their deference to precedent, their sense that there may be less cruel or fairer ways of administering the death penalty, or their hope that the democracy will eventually abolish the death penalty on its own. A judge’s thinking about the constitutionality of the death penalty is based on many factors, and the constitutional and the political blend together.  Blaming the result of a case on a judge misconstrues the role of the judge. In a constitutional case, a judge’s job is to render an honest reading of her vision of the Constitution, taking into account precedent and concerns about judicial administration. A judge’s job is not to decide whether a statute should be overturned based on whether he or she approves of the statute.

It’s one thing to criticize Justice Scalia for inconsistently applying originalism or even for using originalism disingenuously to achieve the result he desired. It’s quite another to hold him responsible for, as an example, wanting to deny women access to contraception. In Burwell v. Hobby Lobby, Justice Scalia joined the majority holding that employers cannot be forced to subsidize, though provisions of health insurance, access to contraception. The Court was interpreting a federal statute, the Religious Freedom Restoration Act, which restricts the federal government’s ability to burden the religion of “persons” (the statute, like many others, includes corporations in its definition of persons). Now, Burwell is a complex case, and the majority and the dissent make good points.  This means that Justice Scalia’s vote may not be a naked vote against contraception, and we should be loathe to characterize it as such. There are cases where a judge seems more likely to be rendering a simplistic, political decision, but this should not be the reflexive accusation or the default framing of what has occurred. As I tell my students, a case comes to a judge with a particular procedural gloss – perhaps a statute is on point that a court is charged with interpreting, or perhaps an appellate court must apply a deferential standard of review. Judges, while indisputably making law (the realists certainly won on this point), are and should be limited in how they reach their legal outcomes.

  • Turning complex legal issues into pop culture memes/political causes.

When cases get decided, partisans often extract the simplest kernel from the case that helps their cause and ignore the rest of the case. This kernel becomes a pop culture meme that oversimplifies the case and eviscerates the richness of the decision, leading to unjustified anger by those who disagree with the decision and slogan-infected cheering by those who support the decision. Take, again, Burwell v. Hobby Lobby. Pop culture icons (including the wonderful Amy Schumer) warned audiences about companies denying women access to contraception.  This was an oversimplification of Burwell, which involved whether an employer was required to cover contraception as part of its health insurance package. The fundamental right to access to contraception has already been decided; no state can prohibit doctors from facilitating access to contraception.

The “corporations are people” scare after Citizens United is a similarly misguided pop culture reading of the case. The dissent and  the majority were not fighting over whether corporations can bring First Amendment claims for restrictions on free speech. That issue has also definitively been decided; corporations can bring some constitutional claims on behalf of their members. The issue in Citizens United was whether campaign finance reforms were compelling enough and narrowly tailored enough to survive the strict constitutional scrutiny that attaches to limitations on political speech – in Citizens United, an anti-Hillary documentary.

The Notorious RBG phenomenon, is, I think, corrosive to the assessment of judges for the same reasons. Although I respect Justice Ginsburg immensely, depicting her as some rogue champion of the people misconstrues her job and oversimplifies her task into one unbecoming of a Supreme Court Justice. It foments divisiveness and stokes the culture wars in a way that inflames and perhaps negatively influences judges when making decisions.

  • Assuming all judges are equally political/”activist”

The view that judges cannot help importing their own preferences and biases into legal decisions is, on some level, certainly true. However, not every judge does this to the same degree, or on the same level of being “political.” All judges incorporate their priors into decisions, but these priors can be as abstract as “a preference for precedent” or as crass as “I want George W. Bush to win this election.” Judges constrain themselves in different ways, and have different views about their roles.  In my view, the more divorced a judge’s approach to judicial decision-making is from the result in any given case, the less activist the judge is.  A judge doesn’t need a unitary vision of the law (or constitutional interpretation) to be principled, but she should have generalizable principles that she can apply to many cases to separate her decision from her crassest preferences.  Below is a little chart of judicial bias, from closer to further from any given result, that I show my students when considering how to evaluate a judicial opinion.


I would love to discuss further and am open to dissent on these peeves.  My own views about the role of the judge evolve over time, but these three errors in approaching judicial opinions may endure, due to both their failure to accurately describe what judges are doing and their negative influence on our views of not just judges, but our fellow citizens.