A friend recently mentioned to me that he likes a legal journalist because she makes Supreme Court cases “accessible.” I bristled at this word. Although the public should understand the happenings of the judiciary, accessibility exists in tension with an appreciation of the rule of law. Accessibility is deceptive. A depiction of the Court that is easy on the layperson often requires removing legal jargon (or, the actual law) and glossing over the technical aspects of cases. The sometimes meandering course of precedent is usually also simplified (I recall how in Citizens United, the narrative became that Citizens United overruled precedent, but that recent precedent had also broken new ground from previous precedent). Supreme Court cases, argued by the best advocates and often involving the most difficult issues, cannot be rendered truly accessible without distorting the complex doctrinal edifice underlying the case and the nuanced, high-level arguments of both sides.
What remains, then, is mostly a discussion of the results of a case. As a consequence, the public focuses on this result – the political or social ramifications of any case. It’s no wonder that the judiciary has become increasingly politicized. Many factors have contributed to our viewing of Supreme Court Justices as America’s royalty, but I believe that the way cases are presented to the public has enhanced this social problem. When Justice Gorsuch claimed that he believes judges should not make law, and that a good judge must often issue decisions with which he disagrees, many were skeptical of both his sincerity and the propriety of the underlying ideal. Perhaps this skepticism is well-founded, but it is pernicious. One important fix for our rule of law crisis is the First Amendment.
I do not mean to imply that judges never should consider the results of a case when issuing decisions. The result of a case matters to many people (for some, that is all they care about). A truly absurd or unjust result is often a good indicator that the courts have not properly considered some legal question. To some degree, legal realism has won, and we must all acknowledge that judges make law in addition to simply interpreting it. But, judges can avoid deciding cases mostly based on result. We should expect them to separate their own values from their legal reasoning.
Many might believe this task impossible. Everyone imports her values into a case to varying degrees. Yet, rule of law requires that the law applies to all of us equally; like cases yield like results; passion and prejudice do not sway judges; and no judge can decide a case based on whimsy or idiosyncratic preferences. The key, I believe, is for judges to import their values at as high a level of abstraction as possible. A high-level importation of values ensures consistency of results and keeps a judge honest in the performance of her task.
Let me give you examples of what I mean by levels of abstraction. Favoring a defendant’s Fourth Amendment rights in a given case because you are charmed by that particular defendant involves importing values at the most crass, lowest level of abstraction. This choice comports least with the rule of law. Favoring that defendant because you hate the government and love the little guy (or, because you think defendants are guilty and love the government) still involves a low-level importation of values. The judge here allows his own ideology about the role of government to infect his decision-making.
Favoring that defendant, where the law could go both ways, because our constitutional structure is generally defendant-friendly (and fearful of government power) starts to become a more acceptable importation of values. The judge’s values have here been informed and constrained by our legal regime. Finally, favoring the defendant because precedent constrains the judge, or because of the history, purpose, and text of the Fourth Amendment, or because that result is the one way to create coherent and administrable law are, of course, the most neutral, abstract reasons on which to base a ruling.
The First Amendment is one area where the public can see rule of law in action. Although First Amendment doctrine can be quite thorny and complex, even simplified visions of these cases demonstrate judges importing their own values only at high levels of abstraction. This term, for example, all of the Justices weighing in on both Matal v. Tam and Packingham v. North Carolina ruled in favor of broad First Amendment rights at the expense of what appear to be more crass, partisan results. In Tam, the Court held that Congress cannot prohibit the Patent and Trademark Office from trademarking disparaging names, much as we might find The Washington Redskins’ team name almost anachronistic in its blatant racism. In Packingham, the Court held that the state of North Carolina cannot ban sex offenders (arguably the least popular, most maligned demographic in our society currently) from making Facebook profiles, even if this might render some children less safe. These two decisions stand as evidence that every member of the Court cares about the coherence of the law, the post-Abrams precedents involving the First Amendment, and the values enshrined in the broadly written text of the First Amendment.
Not all First Amendment cases are divorced from their political context, however. Citizens United, a 5-4 decision, was extremely polarizing, and appeared to many to be decided based on results. (This is an excellent law review piece arguing that both the conservative and liberal Justices may have a coherent vision of the First Amendment that led to their votes.) Next term, the Court will decide Masterpiece Cakeshop, which has great political significance. Masterpiece Cakeshop, about whether a designer of custom-made cakes can invoke the First Amendment to refuse to sell cakes for same-sex weddings, is a case with difficult line-drawing issues. Independent of the result, my hope is that the Court, and our legal journalists, focus on finding coherent legal principles, engaging in sound line drawing, and honoring the history and text of the First Amendment – in addition to noting the significant effects this case will have on LGBT rights and religious liberty. Our rule of law values, values at the highest level of abstraction, depend on it.