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Sunday, September 16, 2018

Guest Post: Would Appointment of Judge Kavanaugh to the Supreme Court be Constitutional?

If the Senate votes Judge Brett Kavanaugh onto the Supreme Court, it seems pretty clear that he will solidify a staunchly conservative majority on the Court. This new majority will stake out firmly conservative positions on a range of critical issues, including voting rights, reproductive rights, and corporate rights. With a Justice Kavanaugh on board, the Supreme Court will bring a strong ideological bias to its decision making. While that is highly controversial, it’s one of the features of our judicial appointment process.

Or is it? We ought to consider the constitutional implications of ideological bias on the Supreme Court. In particular, principles of due process and the framers’ original intent provide good reason to think that neither a conservative nor liberal majority should be able to impose its views on the Court.  

The Due Process Clause promises litigants that they will receive an impartial hearing before a neutral court. And a neutral court decides cases without any personal, political, or other bias. Once Judge Kavanaugh joins the Supreme Court, it won’t be a neutral court. Any party promoting a liberal viewpoint before the Justices would not be able to count on a fair shot at prevailing.

Because it is unfair for litigants to have their cases decided by an ideologically-biased court, other countries and some U.S. states have designed their highest courts so decisions reflect a broad range of ideological views. Arguably, due process requires something similar for the Supreme Court.

A strong view of due process would demand ideological moderation for each Justice, an approach taken in some European countries. In Germany, for example, nominees to the Constitutional Court must receive a two-thirds vote of approval and therefore must appeal to legislators on both sides of the partisan aisle. Instead of getting judges who are either strongly conservative or liberal, German litigants get judges who are moderate. Like Germany, Portugal and Spain require supermajority votes for appointments to their constitutional courts. So we might say that due process requires restoration of a strong filibuster rule in the Senate or a strong supermajority on final voting for judicial nominations. That would force presidents to nominate Justices acceptable to both parties.

A less demanding view of due process would focus on overall balance on the Court rather than the ideologies of individual Justices. While there are different ways to achieve overall balance, the simplest path for the Supreme Court would be to follow the example of a couple of states and a number of countries. In many European countries, high court decisions are made by consensus or at least a supermajority vote, so justices on both sides of the ideological spectrum have to support the courts’ opinions. State constitutions in North Dakota and Nebraska also employ this path to ideological balance. The North Dakota Supreme Court can declare a legislative enactment unconstitutional only with the support of at least four out of the five justices.  In Nebraska, five out of seven justices are needed to hold a legislative act unconstitutional.

How large should a supermajority be? Since there may be times when six Justices are either conservative or liberal, it probably would be necessary to require more than a two-thirds supermajority to ensure that decisions always reflect the perspectives of both sides of the philosophical divide. Likely, it would make most sense to require decision making by consensus of the entire Court.

What would the framers think about this? On one hand, they didn’t include in the Constitution a requirement for ideological balance on the Supreme Court. On the other hand, they recognized the need to amend the Constitution with a Bill of Rights that includes the Due Process Clause’s guarantee of impartial courts.

With ideological balance, the Supreme Court would be more faithful to the framers’ intentions for our constitutional system. The founding fathers worried greatly about “factions” pursuing their self-interest to the detriment of the overall public good. Accordingly, the constitutional drafters designed a system that they thought would block factional control of the national government. But the framers did not anticipate the extent to which political parties would form dominant factions that could gain command of government power. For example, the framers did not anticipate how partisan ties between presidents and members of Congress would limit the legislative branch's checking and balancing of the executive branch. Similarly, the framers did not expect—nor did they want—a Supreme Court that would reflect the views of only one side of the political spectrum. Indeed, when Alexander Hamilton explained the Constitution’s appointment provisions in The Federalist Papers, he emphasized the need to avoid nominations that reflect partiality instead of the overall public interest.

Supermajority voting on the Supreme Court fits well with constitutional principle in other ways. As the Supreme Court regularly observes, legislation passed by Congress carries a strong presumption of constitutionality. Requiring a supermajority to override reinforces that presumption. The Court does not exercise the same level of deference to state government action, but in those cases, the Supreme Court is interpreting the Constitution and effectively amending our understanding of the Constitution. Accordingly, it makes sense for the Justices to do so by supermajority vote, just as amendments to the Constitution require supermajority support from Congress and the states.

To be sure, the Supreme Court has observed that constitutional concerns are not raised when a judge favors one or another ideological view. Anyone with the appropriate training and experience for the judiciary will have developed opinions on important legal issues. According to the Court, due process prohibits judicial bias against a party to a proceeding, not bias against a legal view that the party might advocate.

But the fact that we must accept individual judges with ideological leanings does not prevent us from seeking moderate rather than strongly ideological Justices or from ensuring an overall ideological balance on the Court. Under a fair reading of the Constitution, litigants ought to be able to ensure that their cases are decided in an ideologically-balanced way.

And ensuring balance might address the declining level of public approval of the Supreme Court. A majority of Americans once expressed strong confidence in the court. According to a July Gallup poll, only 37 percent do now.

Posted by David Orentlicher on September 16, 2018 at 02:41 PM in Constitutional thoughts, Law and Politics | Permalink


It's important to recognize that a court's decision making process will reflect the decision making rules. If a simple majority is sufficient to issue a decision, then judges or justices will aim for a simple majority. And if a supermajority is required, then the judges/justices will aim for a supermajority. I do not think they will fail to reach supermajority decisions because they will not want to abdicate their responsibilities, and they will want to leave their marks on the law.

Even people such as Donald Trump accommodate themselves to their decisionmaking context. He came to an agreement with Canada on the NAFTA update even though he didn't really get very much in the deal.

On loss of a supermajority, each case that comes before the Court would require a supermajority for a decision. So to overturn Planned Parenthood v Casey, the Court would need a supermajority. It also would need a supermajority to uphold Casey. As you suggest, we would get more middle ground decisions and fewer strongly conservative or strongly liberal decisions.

And I would apply my argument to statutory or constitutional cases. I also would apply it to the courts of appeal.

Posted by: David Orentlicher | Oct 25, 2018 9:53:48 PM

What happens when the Third Circuit rules one way and the Fourth Circuit rules another way - do we leave the law as constitutional in half the country and unconstitutional in the other half, with the Supreme Court utterly unable to solve the problem unless one party gets in power for long enough? Heck, what happen if a couple of three judge panels in the same circuit rule differently, and the entire circuit can't get a supermajority to decide it one way or the other? Is the outcome of any particular case regarding that issue in that circuit then merely dependent upon which judges are randomly selected to hear the case? Or do you simply trust that consensus will be reached?

What happens when a supermajority is lost? Does the law revert to being constitutional, or does it take a majority or supermajority to override the previous decision? What if there's a new law that's almost, but not quite, identical to the old one? What counts as overriding the previous decision versus clarifying its limitations? What happens to stare decisis when it only takes a minority of the Court, instead of a majority, to go against precedent by *not* declaring something unconstitutional?

What about cases that aren't about constitutionality, but about statutory construction or common law? Does your idea of "due process" require a supermajority in those cases as well? I can't see why it wouldn't; it's just as unfair to have a court reject a liberal argument for the construction of a statute as it is for a court to reject a liberal argument for the constitutionality of a statute. But you can't require a supermajority to interpret a statute; that makes no sense because the statute obviously has to be interpreted in *some* way. And, of course, statutes are sometimes constructed in part to avoid constitutional problems, which confuses the issue even more; does that require a supermajority or not? Does it merely depend on how the court phrases its argument?

Posted by: David C | Oct 23, 2018 6:38:41 AM

To jph12, it’s possible that the Court might fall short of a supermajority for either side, but I think unlikely. People aspiring to the Supreme Court want to leave a legacy, and that means issuing opinions that shape the law. In addition, people adjust to the decision making rules they are given. If they’re allowed to decide by simple majority rule, they will do that, and if they are required to decide by consensus, they will do that as well. That was my experience working with a consensus-based policy making body at the American Medical Association, and that is the experience of the European high courts. I think we would see more incremental changes in the law and fewer big changes, but we would get decisions from the Court.

To Salem, my proposal treats all ideologies equally. It would give the same number of seats to conservatives, liberals, and moderates, and each ideological bloc would have the same ability to persuade the other blocs of the wisdom of its ways. Of course, the obligation to reach a consensus will tend to drive the blocs toward the middle, but that would happen as well if we only had conservatives and liberals on the Court, with equal numbers of each. Studies on group decision making find that groups make better decisions when members of the group bring diverse perspectives to the table. And that makes sense. Conservatives will be right about some things and wrong about other things. Same with liberals. Requiring them to agree gets them to preserve the good ideas and discard the bad ones.

Posted by: David Orentlicher | Sep 21, 2018 2:37:13 PM

"To jph12, my argument is symmetric with respect to appellants and appellees. For example, many states ban abortion after 20 weeks of gestation. Suppose challenges to a few of those bans reached a Supreme Court operating under a supermajority requirement. For the challengers to prevail, they would have to persuade a supermajority of the Justices to uphold Roe and Casey’s viability rule. For the states to prevail, they would have to persuade a supermajority of the Justices to override Roe and Casey’s viability rule."

My question is about how the case itself is resolved when neither side can convince a supermajority of the justices. If that's treated as a tie, leaving the Court of Appeals decision in place, then the appellees are at a decided advantage. Even if it doesn't create a binding precedent, it's still much easier for them to prevail because ties go to the appellees and the supermajority requirement would seem to make "ties" much more likely.

Posted by: jph12 | Sep 20, 2018 2:33:50 PM

I don't think you have yet properly grappled with the distinction between moderation and bias. Let me give you an example, and you can explain how your theory would work.

Let's stipulate that by its plain text, the 14th amendment bans racial discrimination by states. Suppose that, in the year 2068, judges associated with the Whig Party uphold that clear meaning. Judges associated with the American Party claim that states are allowed to discriminate racially however they like. Moderates claim that states aren't allowed to discriminate against African Americans, but are allowed to discriminate against Asian Americans.

Are the Whig Party judges biased because of their extremism? Or are they just right, and the others, including the moderates, are biased? Why should the legal system be set up to favour the moderates?

Posted by: Salem Al-Damluji | Sep 20, 2018 3:50:34 AM

To jph12, my argument is symmetric with respect to appellants and appellees. For example, many states ban abortion after 20 weeks of gestation. Suppose challenges to a few of those bans reached a Supreme Court operating under a supermajority requirement. For the challengers to prevail, they would have to persuade a supermajority of the Justices to uphold Roe and Casey’s viability rule. For the states to prevail, they would have to persuade a supermajority of the Justices to override Roe and Casey’s viability rule.

I would and do apply my argument to the courts of appeal. The correct link is https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2950931 (thanks for pointing out the problem with the comma).

To Kaydyacha, you are correct to worry about the bias in favor of the state in the Nebraska and North Dakota supermajority requirements, but as I’ve indicated, my proposal treats both parties equally in terms of the obligation to secure supermajority support. All decisions by the Supreme Court, whether in favor of the state or against the state, would need supermajority support.

It’s an interesting question the extent to which due process should cabin separation of powers doctrine. The Supreme Court employs multiple doctrines to stack the deck in favor of the government, including standing rules and rational basis review for constitutional challenges to most laws. At what point does judicial deference to the legislature or executive violate the due process of those challenging state action? It’s a very good question, but not one raised by my argument.

Actually, it is correct to characterize "centrist" Justices as less extreme than strongly conservative or strongly liberal Justices. A Justice who thinks there is an individual right to bear arms that is subject to reasonable regulation is less extreme than either a Justice who thinks there is no individual right to bear arms or a Justice who thinks there is an individual right to bear arms that is not subject to government regulation.

Posted by: David Orentlicher | Sep 19, 2018 8:57:40 PM

The link to your paper is broken (I'm guessing the comma at the end shouldn't be in the link), but I don't see how requiring a super majority for a decision makes anything better. It certainly doesn't seem to make anything fairer. Why should the appellant have to convince ten justices to prevail while the appellee only has to convince three (assuming the lower court decision stands if ten justices can't agree)? Or do you propose that the majority wins the case but it takes ten to make a binding precedent?

And don't we just have the same problem with ideological imbalances at the Court of Appeals level?

Posted by: jph12 | Sep 18, 2018 3:58:11 PM

David, can you explain why the separation of powers/due process distinction you draw matters?

If I'm reading your argument correctly, you state that a SCOTUS with Kavanaugh (or Kennedy) violates due process when it decides an employment law/Federal Arbitration Act case because "a neutral court decides cases without any personal, political, or other bias ... Any party promoting a liberal viewpoint before the Justices would not be able to count on a fair shot at prevailing." (Obviously pinning down whether the Janus/Abood cases are liberal when a police union is involved instead of a public service workers union, [or a teachers union in 2010 versus a teachers union in 2018] is difficult given the shifting political positions, but putting that aside...)

It seems that a supermajority requirement for invalidating state statutes results in a due process violation because the court has a bias in favor of the state. Now, your argument might be that when the judges have a "personal" bias (e.g. financial interest) due process is violated, although I don't think you articulate that qualification. Under the supermajority view, the bias is structural and explicit. The deck is stacked against the challenger. In Texas, it's stacked against liberals and in California it's stacked against conservatives. So at a high level one could make some sort of neutrality argument, but that seems too clever for your due process argument that a Kavanaugh Court is unlawful because a party "would not be able to count on a fair shot at prevailing."

And finally, I do think it's worth emphasizing, as others have, that a "moderate" ideology (say, O'Connor) is not actually less extreme than a Brennan or Thomas ideology. If Brennan or Thomas are very convinced that the Constitution requires X, then some minimalist who consistently settles for halfway just gets the answer wrong 100% of the time.

Posted by: Kaydyacha | Sep 18, 2018 3:01:26 PM

To follow up on jph12's concern about Nebraska and North Dakota singling out legislative enactments for supermajority voting. That's not based in due process but in concerns about separation of powers. Under a due process theory, as I've argued, we would apply a supermajority voting requirement to all cases.

Posted by: David Orentlicher | Sep 18, 2018 2:46:38 PM

Orin, thanks very much for continuing the discussion. I wouldn't say the Supreme Court has rejected my argument. In dicta, as for example in Republican Party of Minnesota v. White, the Court has said that a judge's ideological bias is not disqualifying in the way that a personal financial bias is disqualifying. And it has taken that view because anyone who has the experience and training that would be desirable in a judge will inevitably have developed an ideological bias. But I'm not aware of any discussion by the Court on the question whether due process requires measures to minimize the inevitable ideological bias that judges bring to their decision making.

To the extent that I rely on Supreme Court decisions to make my argument, I do so because I think they appropriately reflect the meaning of due process, not just because they were issued by the Supreme Court.

Bringing Salem's question into the mix takes us back to my stronger and less demanding views of due process. In the less demanding view, we would accept the current appointment process and address the problem of ideological bias by requiring supermajority decision making on the Court. That way all decisions would reflect views from across the ideological spectrum. In this view, 9-0 decisions satisfy due process while 5-4 decisions do not.

In the stronger view, we would try to address ideological bias at the appointment stage. Yes, ideological bias is inevitable, but let's try to minimize the extent of the bias. By requiring supermajority approval of the Senate, we would have Justices acceptable to conservatives and liberals.

While I think supermajority voting in the Senate is preferable to simple majority voting, I think there is an even better way to address the problem. In my article on ideological balance, https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2950931, I propose a 12-member Court, with the appointment process redesigned in way to have four conservative Justices, four liberal Justices, and four moderate Justices. I prefer that mix to a bench entirely with moderate Justices because I think it important to have decisions emerge after deliberation among Justices with a wide range of perspectives. For such a 12-member Court, I think decisions should require a vote of at least 10 of the Justices, so at least two Justices would come from each of the ideological blocs. I say at least 10 because of the phenomenon of "ideological drift" where a Justice thought to be of one ideology turns out to develop a different ideology. So it might be safer to require consensus of the entire Court.

Posted by: David Orentlicher | Sep 18, 2018 10:10:41 AM

What reason do we have to think that a "moderate" court is less biased, ideologically or otherwise, than an "extreme" one?

Posted by: Salem Al-Damluji | Sep 18, 2018 5:53:14 AM

Thanks, David, for the clarifying reply. For what it's worth, I just think that argument is extremely difficult to make. You're relying on principles drawn from Supreme Court opinions to make a novel argument that the Supreme Court, at least with certain memberships, is unconstitutional. But you seem to agree that the Supreme Court has rejected your argument, and you don't give us reason to think that the principles from opinions that you do recognize were themselves from constitutional Supreme Courts. For example, you rely on a 1927 case for the general principle that neutrality is required. But what reason is there to think that the 1927 Supreme Court that announced that principle was itself a constitutionally valid Supreme Court? The entire Supreme Court may well have violated Due Process in 1927, with all of its decisions and the principles it announced being merely biased unconstitutional principles from an illegitimate Supreme Court rather than true neutral constitutional principles that you can follow.

Posted by: Orin Kerr | Sep 18, 2018 12:02:48 AM

In response to Orin's question about why decisions become unconstitutional because the Court is either too liberal or too conservative, I would put it in terms of whether we have a properly structured Court. That is, since due process requires a neutral decision maker, failing to provide a neutral decision maker renders a tribunal unconstitutional. So in Tumey v. Ohio, having a judge with a financial stake in the outcome of your case makes the court unconstitutional. Redish and Aronoff argue that when state judges have to stand for reelection, they also have too much of a personal stake in the outcome of their decisions so are not neutral decision makers. I think that a court with an ideological bias is not a neutral decision maker and therefore such a court doesn't satisfy the requirements of due process. Does this help?

Posted by: David Orentlicher | Sep 17, 2018 11:34:42 PM

It seems to me that I have heard Catholic nominees say something of the sort repeatedly. I don't know whether I have heard it from members of other faiths or people (which would include, so far as I know, roughly everybody) who are strongly guided by some other guide to conscience, including various philosophical, cultural, ideological and other precepts and various writers on those subjects, in part because I don't know whether the same question is asked directly and with equal rigor of every nominee or not.

Incidentally, I'm not sure how or why your (b)(1) is required either by the Constitution or by any realistic theory of judging. As important, I doubt that it's capable of even some imaginary state of genuine self-enforcement, given the impossibility of making decisions according to the Constitution and one's"independent" conscience that are somehow separate from various sources of guidance on conscience, and the distinction between "relying" on various sources in the sense of making judgments as a human being with a complex psyche--which, again, seems to include how everyone thinks and acts--and "relying" on various sources in the sense of treating them as authoritative legal sources. If it's the former, then I'm not sure how many, if any, judges ever violate it, whatever the text, including the Federalist. If it's the latter, I'm not sure why one's own independent "conscience and reasoning," as opposed to, say, one's conscience and reasoning as informed by the Federalist or wisdom of Buddha or John Rawls, should be treated as an authoritative source of law.

Posted by: Paul Horwitz | Sep 17, 2018 1:19:44 PM

28 U.S. Code § 455 needs to be changed to include:
Here :

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he forms his judgment in reliance on any authority besides the US Constitution and his own independent conscience and reasoning.

NOTE: This is not a religious test, since beside excluding reliance on authority of the Pope, the Bible, the Koran and the Book of Mormon, it excludes reliance on the Federalist Papers et. al.

But SCOTUS is now so full of Roman Catholics that it would be high time we heard one of the nominees say, "No, I do not rely on the doctrines of the Roman Catholic Church, but instead on my conscience." Likewise, if we ever see an Evangelical nominee, we want to hear him say, "No, I do not rely on the Bible as my authority."

Posted by: Jimbino | Sep 17, 2018 12:05:47 PM

"State constitutions in North Dakota and Nebraska also employ this path to ideological balance. The North Dakota Supreme Court can declare a legislative enactment unconstitutional only with the support of at least four out of the five justices. In Nebraska, five out of seven justices are needed to hold a legislative act unconstitutional."

I have a hard time believing that due process can require that the courts be structured to favor the government rather than private citizens. Permit possibly, but not require. How can due process require that one side convince six or seven justices while the other side only has to convince three or four? Especially when it's generally the less powerful side that has to carry the heavier burden.

"As the Supreme Court regularly observes, legislation passed by Congress carries a strong presumption of constitutionality. Requiring a supermajority to override reinforces that presumption."

This itself is an ideological bias. And probably one lacking a solid empirical basis.

Posted by: jph12 | Sep 17, 2018 12:05:46 PM

Why do you even raise the question of whether such an appointment would be constitutional or if having 'liberal/conservative' justices violates due process if you are going to (correctly) dismiss it at the end of the piece?

I mean I found the discussion about supermajoritarian voting requirements, partisan diversity requirements etc.. interesting as potential constitutional reforms but raising the suggesting that having a liberal or conservative justice violates due process just sets up the reader to be mislead. The problem is this claim is true if we understand liberal/conservative to mean someone who runs roughshod over legal reasoning to enact their liberal/conservative preferences about policy. However, in the sense of judicial appointees liberal and conservative are just names for certain judicial philosophies/temperaments that tend to be favored by the respective parties.

Obviously, it doesn't even make sense to demand judges be non-partisan in the sense that they don't have views on the law or that there won't be natural clusters of views. That would essentially say judges can't study the law or talk about it. And once you have such clusters of views each party will associate themselves with one or the other.

Indeed, you seem to recognize this point at the end so what was the point of all the rigmarole?

Posted by: Peter Gerdes | Sep 17, 2018 6:48:19 AM

David ,

It seems with all due respect , that you don't really perceive correctly the term " bias " . For this term , legally ( emphasizing : legally ) means something else :

Every judge on earth , has personal and political views . But this is not the issue , this is not the test , this is not the right terminology .

The right and effective and legal terminology , is not based on having bias , but rather : fixation , or " fixed mind " . That is to say , that a judge , should be disqualified , when , there is reasonable suspicion , that :

His mind is ,or ,would be fixed . Fixed , given specific circumstances he faces as judge . Fixed , locked up , that is to say , that he wouldn't be able to loose it , to let it go , and judge impartially in certain case . He would be to such degree seized with such fixation , that he has lost the professional judgment or capacity . Like ( an extreme case for the methodology ) :

His wife , should be judged or sentenced by him , in a criminal case , and he needs or should lock her up , and put her in jail . This is a case of possible fixation ( apparently , but too complicated right now ) .

You claim that :

" but we have ample empirical evidence of the fact that a conservative court will come to very different conclusions than a liberal court. "

Yet , this is not the test . The test is not that . But rather , whether such conclusion , has been taken , despite , or , while ignoring clearly established law and jurisprudence . Because it is guaranteed typically on the other hand, that :

When there is clear law and jurisprudence , judges , put aside their personal identity , and the professional one , takes over . That is to say :

That a judge , wouldn't let a criminal , roam free , simply because of the fact , that they are from the say political side . That's it !! For the rest :

It is simply due to vacuum . Vacuum in law and jurisprudence , that let the judge , to fill it , with his personal view ( in some cases , it does happen ) . So , it is simply up to the legislator , not to leave vacuum . At least , in crucial constitutional issues ( abortion , second amendment , same sex marriage , immigrants and so forth .... ) .

But , if political bias , as perceived by you , would become a factor , then , the public trust shall be eroded . Why would a judge , who has child , or grandson , be able , impartially , sit in a case , of one person suspect as pedophile ? The list , is endless one by the way . For , that is the core of the meaning of being professional judge . Ignoring mess of such , and being cool simply .


Posted by: El roam | Sep 17, 2018 5:15:54 AM

David, thanks for the response. I see two very different arguments potentially in play here:

(A) It would be better for the country if we had a more centrist Supreme Court, and you favor certain structural reforms to help try to achieve a more centrist Supreme Court.

(B) When the Supreme Court becomes too liberal or conservative, every Supreme Court decision becomes unconstitutional because its decisions violate the Due Process clause.

I think I understand (A), but I have a hard time approaching (B).

Posted by: Orin Kerr | Sep 17, 2018 3:36:46 AM

I suspect that in most periods, the Supreme Court has had an ideological bias. Here's a link to an article with Martin-Quinn scores, showing when the Court was relatively more liberal and when it was relatively more conservative, https://fivethirtyeight.blogs.nytimes.com/2012/03/29/supreme-court-may-be-most-conservative-in-modern-history/. Of course, it's easier to know whether a Court is relatively liberal or conservative than whether it is absolutely liberal or conservative.

I don't think it's necessary to decide on a year-by-year basis whether the Court suffers from a particular bias and therefore whether we have a due process problem. Rather, because we know that a majority of Justices generally will exhibit either a conservative or liberal bias, and therefore we cannot truly have an impartial Court, we should adopt voting rules that minimize the impact or extent of that bias. Thus, for example, a Court that decides by a supermajority or consensus vote will have less of an ideological bias than a Court that decides by a simple majority vote. And if we required a supermajority vote of the Senate for appointment, I suspect we'd get more Justices whose liberal or conservative leanings are relatively moderate (notwithstanding the fact that in the past some very conservative or liberal Justices were appointed with overwhelming support in the Senate).

Posted by: David Orentlicher | Sep 16, 2018 11:34:02 PM

Who determines when a group of Justices would be sufficiently "ideologically balanced" to be constitutional? Who picks the fulcrum, how much of a deviation from it is allowed, and how and when do you measure when that point has been reached?

A related question: What past periods of the Supreme Court have been unconstitutional? Was the Warren Court unconstitutional? The Taft Court? The Rehnquist Court?

Posted by: Orin Kerr | Sep 16, 2018 10:14:51 PM

There certainly is an effort by judges to claim that they decide cases based on legal principles and rules rather than based on their ideological leanings--as in Chief Justice Roberts' famous analogy of a justice to a baseball umpire--but we have ample empirical evidence of the fact that a conservative court will come to very different conclusions than a liberal court. That's why other countries and some states take steps to limit the extent to which courts operate on the basis of an ideological bias. Those countries and states clearly think that principles of due process require consideration of ideological bias, and it is regrettable that the statute for judicial disqualification does not. I don't think we can rely on the disqualification statute to adequately reflect principles of due process.

Posted by: David Orentlicher | Sep 16, 2018 9:57:01 PM

Just correction to my comment down there :

instead of :

" against specific law and specific jurisprudence " , should be :

Against or despite specific law and specific jurisprudence guiding him or clearly binding him .


Posted by: El roam | Sep 16, 2018 4:01:55 PM

Interesting , and surprising I must admit , yet , not really strong and convincing . The respectable author of the post links the due process clause , with political bias . But , if political bias , was a basis for suspicion of partiality , then , we could expect for example , a judge to disqualify himself ( or legislation prescribing it ) yet , I quote the most relevant parts of :

28 U.S. Code § 455 - Disqualification of justice, judge, or magistrate judge

Here :

(a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

(b) He shall also disqualify himself in the following circumstances:

(1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding;

(2) Where in private practice he served as lawyer in the matter in controversy, or a lawyer with whom he previously practiced law served during such association as a lawyer concerning the matter, or the judge or such lawyer has been a material witness concerning it;

(3) Where he has served in governmental employment and in such capacity participated as counsel, adviser or material witness concerning the proceeding or expressed an opinion concerning the merits of the particular case in controversy;

(4) He knows that he, individually or as a fiduciary, or his spouse or minor child residing in his household, has a financial interest in the subject matter in controversy or in a party to the proceeding, or any other interest that could be substantially affected by the outcome of the proceeding;

(5) He or his spouse, or a person within the third degree of relationship to either of them, or the spouse of such a person:

(i) Is a party to the proceeding, or an officer, director, or trustee of a party;

(ii) Is acting as a lawyer in the proceeding;

(iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding;

(iv) Is to the judge’s knowledge likely to be a material witness in the proceeding.

End of quotation :

So , we could expect , political ground for disqualification , but , not at all mentioned ( absurd by itself ) . Let alone , while the constitution , clearly delegates the executive branch or the president ( clearly political appointment as such ) for appointment of federal judges .

There is a problem in the US , but this is due to harsh divergence in constitutional principles . The test is not , the political personal view of one judge , but :

A judge who would clearly rule , against specific law and specific jurisprudence , due or thanks to his political personal view . That , can't be really proven .


Posted by: El roam | Sep 16, 2018 3:56:58 PM

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