1/ As a number of people have pointed out, it's (part of) John Roberts' job, as Chief Justice, to uphold public confidence in the integrity of the federal judiciary and in the impartiality of the judges comprising it. I get that. But it's my job, as a scholar, to tell the truth.
2/ And the truth is that many judges in the system are results-oriented in ways that compromise the principle of the rule of law. This is true more often of contemporary Democratic than of Republican appointees, but it can be found among Republican appointees (e.g., Posner) as
3/ well as Democrats. And there are Democrats (e.g., Cabranes, Garland) who are generally not guilty of this charge. But those who are guilty damage the legal system and the nation they were appointed to serve. And they damage the cause of justice under law. And they undermine
4/ the public's faith in the integrity and impartiality of the judiciary. Now, let me complete the task of alienating almost everybody, by saying that I like and respect Chief Justice Roberts. And I appreciate his efforts to keep the Supreme Court out of politics to the extent
5/ possible. He wants the people to rule themselves and not be ruled by judges. This is a good impulse and honors the basic theory of American democratic republicanism. He tries hard (sometimes perhaps a bit too hard) to uphold legislation where it is not crystal clear that the
6/ Constitution forbids it. He believes in judicial restraint--again, a generally good impulse given the basic terms of our constitutional system. And he wants to encourage this attitude in other federal judges. I believe that his response to President Trump was meant not only to
7/ reassure the public about the integrity and impartiality of the courts, but also to provide this sort of encouragement. In this sense, his remarks were indeed "aspirational"--and can and should be interpreted that way. But as a description of the situation in the courts today
8/ (and frankly for much of our history) they don't capture the reality. As I said in my original tweet, many judges act on ideological motives, and there are even theories propounded by prominent scholars designed to justify their doing so. Any plausible account of the facts on
9/ the ground cannot leave these truths out of account. Now, does it have to be this way? Will judges inevitably act on ideological motives? For reasons having to do with human psychology or, perhaps, the nature of law, is it impossible for judges to avoid often permitting their
10/ personal moral and political convictions to color or even determine their "interpretations" of statutes and constitutional provisions and their applications of legal norms to facts? Are the so-called legal realists (like Judge Posner) and critical legal studies
11/ theorists right? My view, fwiw, is that there is a kernel of truth in what they say, but only a kernel. Perfect objectivity and impartiality will not (always) be possible. But judges should strive to be as objective and impartial as possible. And in the case of many of our
12/ judges there is a great deal of room for improvement. They need to avoid conceiving their role as "using the law" to achieve social goals (however desirable they may regard those social goals as being, and however desirable those social goals are). Sometimes it will be the
13/ case that applying legal norms (or a particular norm) in an objective and impartial manner will advance a social goal--perhaps a good one. That's great! We should all cheer (both the law itself and the judge for interpreting and applying the law correctly). But the judge
14/ should not compromise the principle of the rule of law (and specific constitutional principles, such as the separation of powers) by manipulating legal norms to advance a cause or achieve a social goal. That judges shouldn't legislate is not a mere cliche. It's a
15/ constitutional and moral obligation. The integrity of the legal system requires it and people's confidence in the integrity of the legal system--people's belief that judges are delivering justice under law--will not long survive its widespread violation and abandonment.
