There is a concept in corporate and employment law called good will. It refers to the idea that a company’s reputation is important, and that a positive reputation and good relationships will lead to repeat business with existing customers and referrals to new customers. Companies can sell their good will along with their tangible assets, and companies also go to great lengths to protect their good will when an employee leaves the company in a position to harm the good will. Courts are not businesses, but the concept of good will translates well to the institutional role of the courts. A court, and a judge, needs good will in the form of impartiality and independence for the judicial system to function as a fair arbiter of disputes.
Whatever your viewpoint on the fairness or outcome of the Kavanaugh confirmation hearings, the good will of the Supreme Court has been diminished. The Supreme Court has more of a reputation as a partisan institution than it did a month ago. This view is held not only by many in the general public, but also by many in the legal profession. Scotusblog, a well respected and (in my view) neutral observer of the Supreme Court, reacted to the Kavanaugh confirmation by tweeting that “Kavanaugh’s confirmation transforms [the Supreme Court], creating the most conservative majority ever, which — absent surprise health issues — will last decades. The left, opposing the majority and objecting to him personally, will likely begin an indefinite assault on the Court & Kavanaugh.” For those who care about the legitimacy of the Supreme Court and the rule of law, this is not good.
The Kavanaugh confirmation hearings brought important cultural, legal and institutional issues to the fore. There are sexual assault victims and women who view Kavanaugh’s confirmation as tacit approval of the culture that belittles women, and a rejection of the seriousness of the lifetime rheumatisms that victims carry from their assaults. There are others who think that Kavanaugh got sandbagged at the last possible moment, and they wonder who will enter public service when every part of a nominee’s past is scrutinized.
But no matter a person’s viewpoint on the substantive allegations against Kavanaugh or the procedure of the confirmation hearing, many reasonable and objective persons, including those in the legal profession, would conclude that Kavanaugh’s comments and demeanor before the Senate Judiciary Committee were unbecoming to a judge to the detriment of the Supreme Court. There are at least four reasons to reach this conclusion.
First, sneering and talking back to questioners, calling the inquiry a “political hit” apparently for “revenge on behalf of the Clintons,” and warning that “what goes around comes around” is not acceptable judicial behavior. Kavanaugh himself admitted as much in an op-ed in the Wall Street Journal, stating that “I know that my tone was sharp, and I said a few things I should not have said.” Kavanaugh is not the first Justice to make inappropriate political comments. A few years ago, Justice Ginsburg said that she “can’t imagine what the country would be” with Trump as President, and later called Trump a “faker.”
Second, it’s as close to black-letter ethics law as there is that judges and judicial staff should not make politically charged statements about political parties or candidates. Canon 5 of the Code of Judicial Conduct, which applies to all federal judges except those on the Supreme Court, states that “a judge should refrain from political activity.” As the Ninth Circuit has explained, Canon 5 prohibits “making public speeches, commenting on a candidate for public office and ‘any other political activity.’ . . This Canon does not preclude a judge from having political opinions or even sharing those opinions in private among friends. However, disseminating political opinions . . . to individuals outside the judiciary contravenes this Canon.” In re Complaint of Judicial Misconduct, 751 F.3d 611, 624 (9th Cir. 2014). Relatedly, Canon 3 commands that “a judge should perform the duties of the office fairly, impartially and diligently.” The intent of these rules is to avoid actual bias and the appearance of bias. This is driven home by Canon 2, which says that a “judge should avoid impropriety and the appearance of impropriety in all activities.” In other words, to preserve the good will of the judicial branch, appearances matter as much as actual bad behavior. The federal statute on recusal makes the same point — “any justice . . . of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.” 28 U.S.C. 455. In all likelihood, Kavanaugh did not follow the Canons of Judicial Conduct in his comments to the Senate Judiciary Committee, or in choosing to communicate messages through Fox News and the Wall Street Journal, both conservative media outlets. Regardless of whether he is actually biased, his impartiality can reasonably be questioned.
Third, broad swaths of legal academia, and even a former Supreme Court Justice, have condemned Kavanaugh’s words to the Senate Judiciary Committee as inappropriate and disqualifying. Over 2400 law professors signed a letter to the Senate that said Kavanaugh “displayed a lack of judicial temperament that would be disqualifying for any court, and certainly for elevation to the highest court of this land.” Former Associate Justice John Paul Stevens commented that Kavanaugh “demonstrated a potential bias involving enough potential litigants before the court that he would not be able to perform his full responsibilities.” Even the former Dean of Kavanaugh’s law school wrote that Kavanaugh’s “very presence will undermine the court’s claim to legitimacy; it will damage the nation’s commitment to the rule of law. It will be an American tragedy.”
Fourth, if a practicing lawyer acted towards a judge the way Kavanaugh acted towards his questioners on the Senate Judiciary panel, that lawyer would probably have his or her head chopped off (in the figurative sense). I have never seen a lawyer act in court the way Kavanaugh acted towards the panel — even when a judge has gone after a lawyer in court with severe criticism. It is hard to square Kavanaugh’s behavior with the courtroom norms that would blacklist any attorney who tried the same thing in a courtroom.
The perception of lawyers is keenly important to the good will and legitimacy of the Supreme Court. I don’t remember a lot of quotes from law professors in law school, but I do remember when Professor Ronald Allen told his class to go forth and be lawyers because we serve on the watchtowers of society. What he meant by this (I think) is that a lawyer’s role in developing legal theories and representing clients vigorously are essential elements in protecting rights and preserving a peaceful and functioning democratic society.
To serve honorably on the watchtowers of society, lawyers must believe that the judicial system is fair and that each litigant can receive an impartial application of the facts to the law. If a lawyer believes a judge is biased to the point of pre-deciding a legal dispute, the legal system is in serious trouble. Lawyers are go-betweens between courts and clients. Much of the respect that emanates from the judiciary derives from a lawyer’s allegiance to the system. This is a major problem with Kavanaugh’s comments — by making them, he lost a large swath of legal academia, and probably an equally large swath of practicing lawyers.
In many respects, the Kavanaugh confirmation hearing is the culmination of the cancer growing on the federal judiciary. The fights over judicial selection have bent the judiciary’s good will back and forth like a paper clip. You can bend a paper clip back and forth only so many times before it breaks, and it is now broken. If things continue as they are, the political parties will likely turn to remedies outside the standard judicial selection process.
Looking forward, I don’t see the Democrats taking anything off the table, including court packing at the Supreme Court and Circuit Court levels, and impeaching Kavanaugh. There’s no constitutional rule that requires nine justices on the Supreme Court or a certain number of judges on each of the appeals courts. If the Democrats get the chance, it’s a fair bet that they’ll consider increasing the size of the Supreme Court to at least eleven justices, and adding seats to the appeals courts. In the meantime, I don’t see the Republicans backing down from their plans to appoint as many conservative judges as possible to positions that they deliberately held open during the Obama years and ignoring the blue slip rule.
In short, there is a cancer growing on the judiciary that culminated with the Kavanaugh confirmation and may continue unabated. With all eyes now on the Supreme Court, it can place the cancer in remission. Here are a few suggestions for the Supreme Court to get there, written from the perspective of attorney who reads all published opinions from the Supreme Court:
Suggestion #1: Write tight, narrow decisions that avoid unnecessary tangents. Those tangents are disrupting the legal system and look like naked policy decisions. To give two recent examples, in Encino Motorcars, LLC v. Navarro, 138 S. Ct. 1134, 1142 (2018), the majority rejected the long-standing rule that Fair Labor Standards Act exemptions should be read narrowly. The Court didn’t need to make this conclusion and made it in passing, and by doing so the Court upended not only federal law, but the many state-law regimes that generally track federal law in wage and hour cases. I doubt the Supreme Court had any idea of the significance of its ruling and the major impact it will have on wage and hour cases. Similarly, in Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2485 (2018), the majority and dissent prognosticated over severability clauses in collective bargaining agreements and whether that will mean that existing CBAs will be kept intact in light of the Supreme Court’s new rule that prohibits mandatory union agency fees. Does the Supreme Court realize that public sector unions are regulated by the state courts, not federal courts, and that questions of contract law in public sector union contracts are governed by state law? The impact of severability clauses on collective bargaining agreements will depend on the specific contract laws in each of the 50 states, not what the Supreme Court says.
Perhaps these tangents sound great when the Court is writing them, but legal opinions are not law review articles. The tangents make it look like the Court is trying to drive a particular policy result rather than deciding a legal issue based on the facts of the case. Plus, the tangents are exhausting for people who read all Supreme Court decisions and they reduce the accessibility of the Court.
Suggestion #2: Stop attending and giving speeches at ideological events sponsored by groups like the Federalist Society and the American Constitution Society. It really doesn’t help the impartiality of the Court to make victory-lap speeches in front of ideological groups. The Supreme Court is made of judges, not rock stars. Justices have plenty of opportunities to speak through opinions. On the upside, maybe the public will forget what the Justices look like and won’t try to derive meaning from the off-the-cuff remarks that Justices make in interviews. Let’s shoot for the goal of tourists asking a Justice to move out of the way so they can get a good picture of the Supreme Court.
Suggestion #3: Get rid of the over-the-top language in the dissents. Many Justices write dissents for a specific audience (like law students) as a means of influencing the future direction of the law. But that doesn’t mean Justices should use phrases like: “If, even as the price to be paid for a fifth vote, I ever joined an opinion for the Court that began: ‘The Constitution promises liberty to all within its reach, a liberty that includes certain specific rights that allow persons, within a lawful realm, to define and express their identity,’ I would hide my head in a bag.” Obergefell v. Hodges, 135 S. Ct. 2584, 2630 n.22 (2015). Or phrases like “at every stop are black-robed rulers overriding citizens’ choices.” Janus v. AFSCME, Council 31, 138 S. Ct. 2448, 2502 (2018). Colorful language like this appeals to pure emotion rather than an application of the facts to the law.
Suggestion #4: Stop signaling policy preferences through dissents from certiorari. For the Supreme Court to take a case, four of the nine Justices must vote to grant a petition for certiorari. Occasionally, when the Court decides not to grant certiorari, a single (or more than one) Justice will dissent from the denial and write a statement of reasons. Sometimes, these dissents are used to state the policy preferences of the Justice. For example, Justice Thomas has embarked on a campaign in dissents from certiorari to signal his strong policy preferences in favor of the Second Amendment. The dissents leave little doubt as to how he would rule in future Second Amendment cases, no matter what the facts. E.g., Silvester v. Becerra, 138 S. Ct. 945, 951 (2018); Peruta v. California, 137 S. Ct. 1995, 1999 (2017); Friedman v. City of Highland Park, 136 S. Ct. 447, 447 (2015). These types of dissents from certiorari are not helpful to the appearance of impartiality because they make the result in future cases look pre-ordained.
Suggestion #5: Conduct a trial for a matter within the Supreme Court’s original jurisdiction instead of sending the dispute to a special master. Article III of the Constitution grants so-called “original jurisdiction” to the Supreme Court for certain types of suits, which means the case can be heard immediately in the Supreme Court without going to a lower court first. The Supreme Court usually exercises original jurisdiction in suits between two states, but when it does, it refers the case to a special master and then rules on the recommendation of the special master. E.g., Florida v. Georgia, 138 S. Ct. 2502 (2018). The process is not unlike a federal district court deciding to accept or reject the recommendation of a U.S. magistrate judge. Instead of referring the case to the special master, the Court should take one of these original jurisdiction cases and preside over a trial. Not only would it require the Justices to work together, and allow the public to see them in action in an evidentiary setting, but it would also enable the Justices to come face to face with litigants. In my view, trial court judges gravitate toward the center over time because they encounter the messiness of life that challenges their assumptions. Appellate judges don’t have this benefit because they operate in the rarified air of cold paper records. A trial every once in a while would do the Supreme Court some good.
Suggestion #6: Adopt ethical rules that apply to the Supreme Court. Unlike the remainder of the federal judiciary, the Supreme Court does not have an ethics code. The Court should channel its inner John Rawls and adopt an ethics code under the fiction that no one Justice knows his or her place in the power structure. Then enforce the ethics code. That would lead to some renewed faith in the Court.
Appearances matter. In the judicial system, the appearance of impartiality is as important as impartiality itself. Lifetime appointments are long, but so are memories of perceived bias. At this moment in history and for many years in the future, the individual members of the Court, and the Supreme Court itself, must act with heightened impartiality to restore the good will of the judiciary. Otherwise, to paraphrase now Associate Justice Kavanaugh, “what goes around will come around.” And it won’t be good for our judicial system.