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By David W. Thomas, Class of 1990. I am now retired but formerly served in an in-house counsel role in the health insurance and insurance services industries after a stint in private practice. The opinions expressed in the article are my own and not attributable to former employers or clients.
The Judiciary enjoys a unique role among the three co-equal branches of the Federal Government. Since 1803 and largely by virtue of its own decision in Marbury v. Madison, judicial supremacy has been the rule. [1] That traditional separation of powers view is based on a claim of limited authority. Unlike the legislature, which impacts events via funding decisions, or the executive branch, which holds the power of enforcement and today regulates activity through numerous administrative agencies, judicial authority is understood to stem merely from the power to render reasoned judgment. [2]
Judicial supremacy was not always readily accepted. The risks, in a judiciary removable only upon limited grounds for impeachment, of potential overreach due to ‘equitable’ determinations of the meaning of the law from which there was no further appeal, was part of the debate about ratifying the Constitution. [3] Other challenges to judicial supremacy arose later – President Andrew Jackson dismissed a ruling with which he disagreed by stating “John Marshall has made his decision now let him enforce it,” the South Carolina Nullification Ordinance of 1832 attempted to preclude federal judicial review of tariff rulings by state courts and in 1957 Governor Orval Faubus of Arkansas refused to desegregate schools under Brown v. Board of Education. [4] While the 101st Airborne was dispatched to quell that dispute, the Supreme Court again weighed in emphasizing that its decisions were the supreme law of the land. [5]
But today, judicial supremacy is perhaps being undermined not by such external threats, but rather perhaps through the Judiciary’s own practices. Many cases deal with disputes between individuals or address laws that govern isolated segments of activity, but other decisions address fundamental societal aspects so broadly as to impact the daily life of many, if not most, of the public at large. In an era where competing media continually focus on political issues and regularly often distinctly partisan perspectives, such decisions are endlessly analyzed by pundits of every stripe, sometimes in incendiary terms.
In such a setting, it is key that rulings be presented in an easily understood manner to preserve respect for the judicial process. But legal opinions, which are written by lawyers to inform and persuade other lawyers, usually contrast competing arguments in legal terms to describe complex legal doctrines. What happens when the general public, who are not learned in the law but are intensely interested in cases that impact fundamental societal issues, examine the readily available opinions [6] rather than just relying on media analysis? Curiosity may well be further piqued if the outcome seems contrary to the perceived ideologically leanings of the judge or Justice who authors the decision. Evaluations by those not familiar with the legal niceties might employ the everyday wisdom embodied in colloquialisms, such as ‘whose ox is being gored’ and consider if there is an effort to hide the ball, or perhaps follow the analysis described in the more classic formulations of que bono and Occam’s Razor.
This type of evaluation could create a public perception of an overly activist Judiciary. That risk, sometimes described as a concern about krytocracy attributed to Justice Reed during deliberations on Brown v. Board of Education, can be understood as a perception that judges rule based on the dictates of their individual consciences to generate preferred results. [7] Such a model almost inevitably results in the judiciary undertaking policy choices understood to be a legislative prerogative in the traditional separation of powers model. [8] If judicial decisions are perceived to be the result of individual conscience, rather than the application of the rule of law, the judiciary may no longer be viewed as independent or neutral and so risk losing the respect that is the foundation of the general public’s allegiance to the law. [9]
Three fairly recent Supreme Court decisions that address issues of broad societal impact, while apparently crafted with due regard for the rule of law, demonstrate this risk. Each decision is addressed below, not with a view as to the correct application of legal doctrine, which for purposes of this discussion can be assumed, but rather with a view towards how the general public, not fully versed in the legal intricacies, might evaluate the integrity of the reasoning process by which the cases were decided. [10]
The first example is National Federation of Independent Business v. Sebelius, 567 U.S. 519 (2012), the decision upholding in large part the Patient Protection and Affordable Care Act (“ACA”). For this discussion, the primary point of interest is not commerce clause jurisprudence, but rather the seemingly inconsistent determinations that the ACA individual mandate was not a tax for purposes of jurisdiction (Id. at 543-46) but was a tax for purposes of whether that mandate was a permissible exercise of Congressional authority. Id. at 6563-74. Questions about the application of the rule of law might also examine the following passage in the opinion announcing the judgement of the Court:
Member of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgements. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.
Id. at 538. While perhaps unusual in so forcefully admonishing the public that they must live with the results of their votes, this is clearly a statement of the traditional separation of powers doctrine.
Now contrast a more recent decision – Bostock v. Clayton County, Georgia, No. 17-1618, Slip Op. (June 15, 2020), wherein the Court held that Title VII of the Civil Rights Act of 1964 prohibits employment discrimination based on “homosexuality or transgender status” (Id. at 13) as a type of sex discrimination. Of interest for this discussion are the majority opinion treatment of two statutory interpretation arguments – for forty years or more the Courts of Appeals had held to the contrary and amendments to add those categories to Title VII had been proposed but not enacted. Also of interest is a concurring opinion in one of the cases under review, which invited the judiciary to acknowledge that it was:
… imposing on a half-century-old statute a meaning of ‘sex discrimination’ that the Congress that enacted it would not have accepted. This is something that courts do fairly frequently to avoid statutory obsolescence and concomitantly to avoid placing the entire burden of updating old statutes on the legislative branch.
Hively v. Ivy Tech Community College of Ind., 853 F.3d 339, 357 (7th Cir. 2017) (en banc) (Posner, J. concurring).
The Bostock majority made short shrift of both the expectations created by four decades of contrary Court of Appeals precedent and the failed proposed amendments to Title VII. Given its reading of the ordinary meaning of sex discrimination in 1964, the fact that the result would not have been readily expected under prior decisions of lower courts warranted no different result. [11] The majority dismissed any impact of the failure to amend the statute by noting multiple possible interpretations of such events, including a possible broader legislative reading of Title VII, making amendment unnecessary, or perhaps some legislators just did not consider such proposals. [12] The concurring opinion in Hively received even less attention; just a few questions at oral argument about that invitation to openly acknowledge at least a quasi-legislative role. [13] But the majority makes no mention of that statement and even the dissent, which discusses that statement more fully, does not quote the key language in full. [14]
The final decision for review here is Department of Homeland Security, et al v. Regents of the University of California, et al, No. 17-1484, Slip Op. (June 18, 2020), in which the Supreme Court held that rescission of the Deferred Action for Childhood Arrivals program (“DACA”) was invalid. Here too, the legal analysis is intricate; but the inquiry as to a possible perception of excessive judicial activism focuses only on the Supreme Court’s ruling that the agency’s action was arbitrary and capricious.
DACA rescission occurred under a new presidential administration after the Court of Appeals for the Fifth Circuit enjoined a related program, Deferred Action for Parents of Americans, as unlawful. [15] The majority did not address the lawfulness of DACA because the agency was bound a later Attorney General’s Opinion that DACA was unlawful. [16] Rather the Court’s analysis focused on separate concerns – a failure to consider other actions within the agency’s discretion and a failure to consider if “longstanding policies may have ‘engendered serious reliance interests that must be taken into account.’” [17] Later, after acknowledging that questions about the lawfulness of DACA could impact the legitimacy of any reliance, the majority offered its own view of different reasonable agency responses, such as a ‘wind-down’ of the program rather than outright rescission or considering reliance interests when deciding individual cases. [18]
Before considering the potential impact of these decisions on the public’s view of the judiciary, a few further comments on the risk of perceived excess judicial activism. First, such an analysis need not decide if a correct legal result occurred. Any fair reading demonstrates the complex issues present in these cases and the volume of the multiple opinions in each case indicates the depth of the legal analysis whereby competing conclusions are derived. But that complexity plays into the question, which asks to what extent, in close cases that impact fundamental societal issues, the public perceive the judiciary to rely on individual moral considerations in selecting lines of analysis that lead to preferred results.
Moreover, the moral propriety of the result, even if driven by considerations of conscience, is not dispositive. The issues at stake – the availability and affordability of health insurance, extending Title VII to protect additional categories of those subject to discrimination and acknowledging the concerns of undocumented persons who arrived as children – each enjoy support, albeit to a lesser or greater extent, among various constituencies. Further, any ruling in these cases would necessarily implicate moral views to some extent as judges are not automations who can totally divorce their consciences in making such decisions. A possible perception of overt judicial activism, however, raises questions about the extent to which moral concerns impact the choice of legal rules to be applied, how fully those choices are explained and whether those choices as explained are accepted by the public as integral to the rule of law. [19] Unless and until such questions are satisfactorily answered, a lingering uncertainty may undermine the public’s confidence in judicial independence and neutrality, without which judicial supremacy is endangered.
Applying that framework to derive a common sense understanding how these three decisions are compatible might lead to the following questions about the motives of those who decided the cases, especially if one or more justice seems to reason inconsistently in rendering decisions:
- How can the same section of the ACA be a penalty and not a tax for purposes of the ability to hear the case but a tax and not a penalty for purposes of the final decision?
- If those dissatisfied with the ACA as enacted must address their concerns by electing different legislators, then why are those dissatisfied with the failure to amend Title VII afforded judicial relief? Persons upset by a refusal to amend the law seem equally as able to access the electoral process as those upset by enacted legislation and if some legislators did not sufficiently care about or even consider the proposed amendments, their seats could be specifically targeted for change.
- How does the other explanation offered to ignore the failure to amend Title VII comport with everyday experience? Is it believable that politicians, fully aware of the accepted view that Title VII did not protect homosexual or transgender status, were content to allow their constituents, whose votes are key to those politicians’ ongoing career success, to suffer unlawful discrimination unchecked until the Supreme Court took up the question?
- If the judiciary believe that policy choices are the province of the legislature, then why no statement, in a published opinion, to refute the widely-reported contrary position asserted in a published opinion of a decision under review? The statement that courts must act to share the burden of updating old statutes directly challenges a traditional separation of powers view so does the failure to acknowledge and rebuke that statement indicate implicit agreement, especially when viewed in the light of the result?
- If decades of consistent Court of Appeals precedent interpreting a statute does not create reliance expectations that warrant any deference, why then does eight years of reliance on an agency rule, which at best had a more checkered legal history, receive different treatment?
- Why did the Supreme Court avoid deciding if DACA is lawful, a key question left open by its prior decision? Was that done to assuage the consciences of some Justices, who would presumably be in the minority on that outcome but who were part of the majority to overturn the decision to rescind DACA? If so, how is that legislative style of vote trading part of applying the rule of law?
None of these questions are impossible to answer while still holding to the result; but the judiciary’s challenge may be to answer without using what might be commonly known as ‘legal jargon.’ This requires recognition that, in ‘big ticket’ cases with far-ranging societal impact, the audience to be persuaded is far broader than just the usual ‘lawyers writing for lawyers’ task in crafting opinions. Perhaps courts could write opinions that more readily describe the established legal canons that underly the decisions. Simple explanations could replace time-honored legal shorthand, such as stare decisis, res judicata, obiter dicta, ratio decidendi, malum in se, malum prohibitum, force majeure, etc. Similarly, a statement followed by citation to precedent that works well when writing for other lawyers seems a less effective way to describe a key aspect of a decision to those not adept in legal research. In interpreting statutes, courts might simply note that actions by later Congresses are too far removed from events at the time a law was enacted to be in any way relevant. Dissents could be less acrimonious; for example, detailing disagreement without characterizing the majority opinion as sailing under a false flag. [20] Perhaps other, wiser practices might be implemented. [21]
A failure to recognize the potential problem, however, may well lead to different, harder to answer concerns. If federal courts become viewed as performing even a quasi-legislative role, then questions arise as to what safeguards assure that proper policy choices are made. How does a litigation model, constrained by the arguments presented by the parties, ensure a full exploration of available policies – a concern made all the more pressing by the recent unanimous decision limiting the use of amici to broaden the litigation inquiry. [22] The rough and tumble clash of various societal classes, a process usually understood to better characterize the legislative branch, has long been deemed by at least some as the more effective manner of ensuring consideration of multiple policy choices. [23]
The public might also question what checks should be placed on the judiciary, appointed for life, if they become understood to make decisions based on individual moral concerns. If judges are now the final authority deciding matters according to conscience, the courts take on royalist attributes that are in many respects antithetical to representative government meant to be responsive to the people as a whole. Reasonable people might shudder to think of the scope of the confirmation process for those appointed for life to exercise such authority – what lines of inquiry might become fair game to examine a nominee’s conscience and moral awareness, what standards would be employed to measure those qualifications and who in their right mind would willingly subject themselves to such an inquisition?
In addition, if judicial faithfulness to a traditional limited role becomes widely questioned, the public may add such a failure to a long list of disappointments with government. The last six presidential administrations were each challenged about their candor and/or consistency in dealing with the public on policy matters. [24] Public respect for Congress, while recently somewhat improved, remains painfully low. [25] A recent survey indicates continued support for the judiciary, albeit with certain partisan divisions. [26] But if the judiciary becomes seen, even incorrectly, as ruling to achieve its own preferred moral outcomes, such support may waiver and remedies via elections are unavailable to restore lost confidence in the federal courts. [27] Proactive action to avoid further grounds for unnecessary widespread disappointment with all three branches of the government might be the better course.
Finally, the concern noted here may well create a certain irony if the judiciary, by a failure to describe decisions in a more easily understood fashion, loses the public’s respect. This is not the first time we are confronted by questions about the morality of government actions or societal structures and the full weight of government, including military force, was previously used to ensure compliance with court decrees. [28] So if the judiciary allows itself to become viewed as having taken up the burden of imposing its own understanding of a more enlightened civilization upon an otherwise benighted society, then now, after the sad events of more than 100 years of history have proven the folly of his improvident advice on the supposed moral justification for imperialism, Kipling himself might be bemused by such an unnecessary squandering of judicial authority. [29] The public’s respect, which is the foundation of a reputation for the rule of law, should be jealously guarded. Perhaps a move to craft opinions that more readily explain seeming inconsistencies as not only compatible with, but in fact a necessary part of the rule of law, would avoid any misunderstanding that rulings result from personal preferences and so better preserve the longstanding view of a government that rules by the consent of the governed.
[1] Marbury v. Madison, 5 U.S. 1 (Cranch) (1803).
[2] See, e.g., Federalist No. 78 (Hamilton) available at https://avalon.law.yale.edu/18th_century/fed78.asp (last accessed 6/25/20).
[3] See, Brutus XV, available at https://teachingamericanhistory.org/library/document/brutus-xv/ (last accessed 6/26/20). That concern continues today. See, G. Weiner, The Not So Supreme Court, available at https://www.theatlantic.com/ideas/archive/2019/09/not-so-supreme-court/598633/ (as accessed 6/26/20).
[4] See, e.g., S. Breyer, FOR THEIR OWN GOOD, https://newrepublic.com/article/63490/their-own-good (last accessed 6/24/20).
[5] Cooper v. Aaron, 385 U.S. 1 (1958) (per curiam).
[6] https://www.supremecourt.gov/opinions/opinions.aspx.
[7] For a detailed discussion of the definition of krytocracy, as distinguished both from kritarchy, which describes practices from the biblical Book of Judges, and the traditional separation of powers view, the reader may examine A. Ussia, The American Krytocracy – The Role of Judges Throughout American History, Ch. 2, available at https://dra.american.edu/islandora/object/0910capstones%3A52/datastream/PDF/view (last accessed 6/23/2020). Given that the very term krytocracy is now sometimes viewed as a label employed by political partisans, use of that term is limited in an effort to not distract from the inquiry here, which is whether opinions readily demonstrate fealty to or deviation from the rule of law.
[8] See, e.g., Federalist No. 47 (Hamilton), available at https://avalon.law.yale.edu/18th_century/fed47.asp (last accessed 6/26/20). Some would argue to the contrary that judges are better suited to decide sociological issues as matters of social justice. See, R. Pound, Social Problems and the Courts, American Journal of Sociology, Vol. 18, No. 3 (2012), available at https://www.jstor.org/stable/2763381?seq=1#metadata_info_tab_contents (last accessed 6/26/20).
[9] See, Frontline Interview of Justices Breyer and Kennedy (1999) (discussing the Judiciary’s need for public respect), available at https://www.pbs.org/wgbh/pages/frontline/shows/justice/interviews/supremo.html (last accessed 6/28/2020).
[10] None of the cases selected for discussion here irrefutably indicates the personal preferences of any Justice as the decision-making model. Indeed, the dissenting opinions in Obergfell v. Hodges, 576 U.S. 644 (2015) more pointedly decry such a result. Rather, these cases were selected because each addresses a different significant societal issue and the outcome appears contrary to the commonly reported ideological leanings of the Justice who wrote the lead opinion.
[11] Bostock, Slip Op. at 24.
[12] Id.
[13] See Transcript of argument No. 17-1618 at 8 and 23 (10/8/2019).
[14] Bostock, Slip Op. at 41, n.5 (Alito, J., dissenting).
[15] Texas v. United States, 809 F.3d 134 (5th Cir. 2015), aff’d per curiam, 579 U.S. ____ (2016).
[16] Id. at 13.
[17] Id. at 28, quoting Encino Motorcars, LLC v. Navarro, 579 U.S. ___, ___ (2016).
[18] Id. at 25-26.
[19] For a more in-depth discussion on the point, see The Judiciary as a New Moral Authority, available at https://www.brandeis.edu/ethics/pdfs/internationaljustice/ethics/Topics%20in%20Ethical%20Practice2006.pdf (as accessed 6/25/20).
[20] Bostock, Slip Op. at 40 (Alito, J, dissenting).
[21] For an example of a possible step towards such a plain-spoken approach, consider Justice Roberts concurring opinion in June Medical Services, LLC et al v. Russo, No. 18-1323, Slip Op. (June 29, 2020), which explains his agreement in a result that contradicts his vote in a prior case by detailing the pragmatic benefits of following precedent. Id. At 46-49 (Roberts, C.J., concurring). While perhaps not guaranteeing overall agreement with that vote, the concurring opinion offers an easier to understand rationale for that decision.
[22] United States v. Sineng-Smith, No. 19-67, Slip Op. May 7, 2020 at 5-11.
[23] See, J. Waldron, Judges as Moral Reasoners, citing Machiavelli, Discourses on Livy, Book I, Ch. IV, available at https://academic.oup.com/icon/article/7/1/2/665858 (last accessed 6/25/20).
[24] See, e.g., https://www.factcheck.org/person/donald-trump/ (last accessed 6/24/20); https://www.politifact.com/article/2013/dec/12/lie-year-if-you-like-your-health-care-plan-keep-it/ (last accessed 6/24/20); https://townhall.com/tipsheet/guybenson/2013/12/09/obamacare-designer-you-can-probably-keep-your-doctorif-you-pay-more-n1759583 (last accessed 6/25/20); and https://www.vox.com/policy-and-politics/2019/3/20/18274228/ari-fleischer-iraq-lies-george-w-bush-wmds; https://govinfo.gov/content/pkg/CRPT-106hrpt1037/html/CRPT-106hrpt1037.htm (last accessed 7/7/20); https://www.kru.org/post/6-little-words-that-helped-make-Geroge-Buish-1-term-president#srtream/0 (last accessed 7/7/20); and https://pbr.org/wgbh/americanexperience/features/Reagan-iran/ (last accessed 7-7-20).
[25] See, https://www.statista.com/statistics/207579/public-approval-rating-of-the-us-congress/ (last accessed 6/24/20).
[26] See, https://www.scotusblog.com/2019/10/recent-polls-show-confidence-in-supreme-court-with-caveats/ (last accessed 6/25/20).
[27] See, e.g., Planned Parenthood of Pennsylvania, Inc. v. Casey, 505 U.S. 833, 854-69 (1992) (plurality).
[28] See, e.g. note 4 supra.
[29] See generally, R. Kipling, The White Man’s Burden (espousing imperialism as a moral mandate), available at www.kiplingsociety.co.uk/poems_burden.htm (last accessed 7/31/20).
