There is no such thing as value-neutral judging

Over a century ago, the Legal Realists exploded the myth that judges can mechanically apply the law without making value choices. Now, astoundingly, several U.S. Supreme Court justices are trying to tell us that their views and ideology have nothing to do with their decisions. That is nonsense and it is hard to imagine they are persuading anyone.

For the first hundred or more years of American history, there was a widespread belief in formalism. Although there is no universally accepted definition of formalism, it is generally understood to mean that judges discern the law in an "objective manner" and then apply it to the specific facts as deductively as possible. In the early 20th century, Legal Realists attacked formalism with great success. They explained that there are no neutral legal rules; all are value choices to favor some parties or principles over others. This is what Justice Oliver Wendell Holmes meant when he said, and Justice Felix Frankfurter repeated, that the "law is not a brooding omnipresence in the sky." The content of the law and how it is applied, especially by the Supreme Court, is largely a function of who is on the bench and their values.

Both conservatives and liberals understand this. Republicans blocked the nomination of Merrick Garland and rushed through the confirmation of Amy Coney Barrett precisely because they recognize that the Supreme Court's decisions are a product of who is on the court and their values.

It is not coincidence, of course, that every term, there are a large number of Supreme Court decisions split exactly along ideological lines. In part, this is because the Constitution is written in broad, open-ended language. What is "cruel and unusual punishment" or "due process" or a law respecting the "establishment of religion"? Even if one wanted to interpret these clauses based on their original meaning, rarely is it possible to know what was intended and even if we could figure that out, it is of dubious relevance for the issues arising over 230 years after they were written.

More importantly, and often overlooked in the debate about constitutional interpretation, is that no constitutional rights are absolute and courts inevitably must balance competing interests. Even fundamental constitutional rights can be infringed and racial discrimination allowed if the government action is necessary to achieve a compelling interest. But what is "compelling" inherently depends on the individual answering the question. The disagreement among the justices on affirmative action is entirely over whether diversity in the classroom is a compelling interest.

At the very least, all government actions that treat some differently from others must be rationally related to a legitimate government interest. But what is a legitimate interest often depends on the views of the justices. The crucial question in the marriage equality litigation was whether the government had any legitimate interest in keeping same-sex couples from marrying.

It is hardly radical or novel to recognize that judges have discretion -- and Supreme Court justices have great discretion -- and how that is exercised often depends on who is on the bench. If I have an argument in a court of appeals, I want to know as soon as I can who is on my panel. Everyone, including the judges themselves, know that this can matter greatly in the outcome of the case.

Yet now several of the justices have given speeches trying to tell everyone otherwise. Justice Barrett gave a speech at the McConnell Center at the University of Louisville on September 12 proclaiming that justices are not a "bunch of partisan hacks" and denied that justices are following their personal beliefs.

A few days later on September 16, Justice Clarence Thomas gave a speech at Notre Dame Law School, echoing Barrett's view that justices do not act on political ideology or their own beliefs when making decisions. "I think the media makes it sounds as though you are just always going right to your personal preference," Thomas said. "So, if they think you are anti-abortion or something personally, they think that's the way you always will come out."

And on September 30, Justice Samuel Alito, gave a speech, also at Notre Dame, defending the court. He sharply attacked media coverage of the court and said the justices are not a "dangerous cabal."

Justice Stephen Breyer, as part of promoting his new book, "The Authority of the Court and the Peril of Politics," gave many interviews and often said, that the Supreme Court is not made up of "junior college politicians." He criticized the media for speaking of justices in terms of the presidents who appointed them and of thinking of justices like politicians.

But on September 29, Justice Sonia Sotomayor, in a program for the American Bar Association, conveyed a very different message. "There is going to be a lot of disappointment in the law, a huge amount. Look at me, look at my dissents."

It was stunning in late September to see so many justices speaking publicly about the Supreme Court. Some of it may be a response to the court's sharp dip in public approval ratings. A September 2021 Gallup poll indicated that approval of the U.S. Supreme Court fell to a new low of 40%. Fifty-three percent said they disapproved of the Supreme Court.

Some of it, too, is likely a reflection of the cases on the court's docket this term and an effort to making the coming rulings seem to be about the law and not the justices. In the coming year, the Supreme Court will decide whether to overrule Roe v. Wade, significantly expand gun rights, and mandate that the government subsidize religious schools. The conservative justices are trying to tell everyone that these decisions, all of which are likely to be in a very conservative direction, are not about their values and views.

Justice Breyer is trying to reassure everyone about the legitimacy of the Court. Justice Sotomayor, though, sees what is coming and wants to be sure that no one is missing what is happening: The most conservative Supreme Court in history is about to remake the law in a very conservative direction.

I do not think the conservative justices are going to persuade anyone that their decisions are other than a product of their ideology. No one doubts that it would be a dramatically different court and none of these issues would be before them if Hillary Clinton had won the 2016 election and replaced Justices Antonin Scalia, Anthony Kennedy and Ruth Bader Ginsburg with liberal or even moderate justices.

Many years ago, I was scheduled to speak at a conference of federal appellate judges and was in the audience when Justice Scalia spoke to them. He said that his personal views on topics like abortion and the death penalty have nothing to do with his rulings as a justice. Several tables away from where I was sitting, then 9th Circuit Judge Stephen Reinhardt, loudly said, to the laughter of all around him, "bullshit." Judge Reinhardt was right and we all know it.