A Strict Reactionary Court

The federal judicial system is quite complex, and the judges are all appointed by the President and confirmed by the Senate. We have ninety-four districts (each having at least one bankruptcy court and the balance of regular federal district courts), twelve appellate courts sitting all beneath the United States Supreme Court. There are also specialty courts (e.g., tax courts) and administrative bodies that sit very much like courts. Federal appointments all.

Not surprisingly, the justices generally have the same political bent of the President who chose them, not always in lock-step with the relevant party affiliation but sharing the presidential values of theman (so far anyway!) who appointed them. There are occasional surprises. The Earl Warren Supreme Court (1953-69), appointed by President Dwight Eisenhower, a Republican, surprised the world by becoming the most civil rights activist court in history.

Scholars have tracked the voting records of Supreme Court appointees to correlate their opinions, over time, with the underlying philosophical bent of those who appointed them. The results? “Most members of the court make more decisions favorable to the president who brought them to the dance than they do to subsequent presidents, even those of the same party, according to a new study by two prominent Supreme Court experts.

“The law professors say what they call the ‘loyalty effect’ is evident even when other factors such as ideology and a personal relationship with the appointing president are taken into account… ‘However, the loyalty effect is much stronger for Democratic justices than for Republicans justices,’ write Lee Epstein, of Washington University in St. Louis, and Eric A. Posner, of the University of Chicago.” Washington Post, December 20^th.

The notion of “loyalty” may more reflect a notion of reciprocal “gratitude” for the appointment. Over time, does this gratitude diminish? What happens when the appointing president leaves office? Epstein and Posner say we spend way too little time looking at the “gratitude” factor and its influence in judicial policy opinions, that perhaps it is the most important criterion in understanding how the court reaches decisions.

“The usual explanation for how a justice votes is ideology, Posner said. ‘But it’s hard to imagine a justice recently appointed voting against a major initiative of the president.’ (As it turned out, Justice Elena Kagan went halfway, upholding the law’s constitutionality but voting against a major Medicaid feature of it.)

“Judicial independence is a mainstay of American democracy, but politics plays a vital role in how a justice gets his or her job. Presidents look for those with similar views and values. A president, after all, can serve no more than eight years, while his nominees to the court stay for decades…

“In theory, a justice owes nothing to his or her political benefactors — the lifetime appointment can be revoked only through a cumbersome impeachment process.

“But Epstein and Posner supposed there had to be some sort of loyalty. They studied the Supreme Court appointees of presidents from Franklin D. Roosevelt to Obama, covering the Supreme Court terms of 1937 through 2014. They examined cases in which the president, a federal agency or an executive branch actor such as the attorney general was a party.

“All but one of the justices examined voted at least a majority of times for the appointing president, with the mean being about 65 percent of the time. But again, Kagan emerged as the anomaly in the study.

“According to Epstein and Posner, Obama’s former solicitor general has voted his way only about 49 percent of the time. But the data for Kagan is more limited. She came onto the court just before the October 2010 term commenced, and she recused herself in 17 of the cases that were studied because of her previous government work. If she had voted Obama’s way in those cases, she would be closer to the mean, they said.

“Chief Justice John G. Roberts Jr. alluded to the process in a short speech at the White House after he took the oath in 2005… He thanked President George W. Bush for selecting him and praised the team at the White House for skillfully guiding his nomination. He thanked the senators for how they comported themselves and for approving his nomination. And then he said he looked forward to getting to work heading the third branch of government and the one that would pass judgment on the president’s actions and the Congress’ laws.

“Because they are supposed to be independent, the justices fret about appearances. Epstein and Posner quote former chief justice William H. Rehnquist as contending that ‘institutional pressures’ within the court ‘weaken and diffuse the outside loyalties of any new appointee.’” The Post. These observations seem intuitive, except most of us, including the judicial appointees all- too-frequently, just seem to address the ideological reasoning. The passage of time may tame some of these gratitude inflections, but they most certainly color some of the most important decisions in our history.

A presidential judicial appointment, particularly to the highest court in the land, almost always exceeds the tenure of the appointing president himself. This small body of justices often wields more power than any other group of political animals, from Congress even to the president himself. Pound for pound, person for person, they may well be the most powerful political forces in our nation. To the extent we can discuss their proclivities, understand their motivations, perhaps we can accelerate the movement of biased political appointment to neutral bastion of the American judicial system that will not work without stringent neutrality.

I’m Peter Dekom, and the Supreme Court is such an important body that we cannot lose our focus on their decisions and the biases of those making those choices.