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Photo provided courtesy of Pixabay.com<\/em>.<\/p>\n By David W. Thomas, Class of 1990.\u00a0 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.<\/p>\n <\/p>\n The Judiciary enjoys a unique role among the three co-equal branches of the Federal Government.\u00a0 Since 1803 and largely by virtue of its own decision in Marbury v. Madison<\/em>, judicial supremacy has been the rule. [1] <\/sup>\u00a0That traditional separation of powers view is based on a claim of limited authority.\u00a0 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] <\/sup><\/p>\n Judicial supremacy was not always readily accepted.\u00a0 The risks, in a judiciary removable only upon limited grounds for impeachment, of potential overreach due to \u2018equitable\u2019 determinations of the meaning of the law from which there was no further appeal, was part of the debate about ratifying the Constitution. [3]\u00a0\u00a0<\/sup>Other challenges to judicial supremacy arose later \u2013 President Andrew Jackson dismissed a ruling with which he disagreed by stating \u201cJohn Marshall has made his decision now let him enforce it,\u201d the South Carolina Nullification Ordinance of 1832 attempted to preclude federal judicial review of tariff\u00a0 rulings by state courts and in 1957 Governor Orval Faubus of Arkansas refused to desegregate schools under Brown v. Board of Education<\/em>. [4] <\/sup>\u00a0While the 101st<\/sup> 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] <\/sup><\/p>\n But today, judicial supremacy is perhaps being undermined not by such external threats, but rather perhaps through the Judiciary\u2019s own practices.\u00a0 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.\u00a0 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.<\/p>\n In such a setting, it is key that rulings be presented in an easily understood manner to preserve respect for the judicial process.\u00a0 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.\u00a0 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] <\/sup> rather than just relying on media analysis?\u00a0 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.\u00a0 Evaluations by those not familiar with the legal niceties might employ the everyday wisdom embodied in colloquialisms, such as \u2018whose ox is being gored\u2019 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<\/em> and Occam\u2019s Razor.<\/p>\n This type of evaluation could create a public perception of an overly activist Judiciary.\u00a0 That risk,\u00a0 sometimes described as a concern about krytocracy attributed to Justice Reed during deliberations on Brown v. Board of Education<\/em>, can be understood as a perception that judges rule based on the dictates of their individual consciences to generate preferred results. [7] <\/sup>\u00a0Such 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] <\/sup>\u00a0If 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\u2019s allegiance to the law. [9] <\/sup><\/p>\n 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.\u00a0 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] <\/sup><\/p>\n The first example is National Federation of Independent Business v. Sebelius<\/em>, 567 U.S. 519 (2012), the decision upholding in large part the Patient Protection and Affordable Care Act (\u201cACA\u201d).\u00a0 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.<\/em> at 543-46) but was a tax for purposes of whether that mandate was a permissible exercise of Congressional authority.\u00a0 Id.<\/em> 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:<\/p>\n 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.\u00a0 Those decisions are entrusted to our Nation\u2019s elected leaders, who can be thrown out of office if the people disagree with them.\u00a0 It is not our job to protect the people from the consequences of their political choices.<\/p>\n Id. <\/em>at 538.\u00a0 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.<\/p>\n Now contrast a more recent decision \u2013 Bostock v. Clayton County, Georgia, <\/em>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 \u201chomosexuality or transgender status\u201d (Id.<\/em> at 13) as a type of sex discrimination.\u00a0 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.\u00a0 Also of interest is a concurring opinion in one of the cases under review, which invited the judiciary to acknowledge that it was:<\/p>\n \u2026 imposing on a half-century-old statute a meaning of \u2018sex discrimination\u2019 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.<\/p>\n Hively v. Ivy Tech Community College of Ind.<\/em>, 853 F.3d 339, 357 (7th<\/sup> Cir. 2017) (en banc) (Posner, J. concurring).<\/p>\n The Bostock<\/em> 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.\u00a0 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] <\/sup>\u00a0The 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] <\/sup> \u00a0The concurring opinion in Hively<\/em> received even less attention; just\u00a0 a few questions at oral argument about that invitation to openly acknowledge at least a quasi-legislative role. [13] <\/sup>\u00a0But 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] <\/sup><\/p>\n The final decision for review here is Department of Homeland Security, et al v. Regents of the University of California, et al<\/em>, No. 17-1484, Slip Op. (June 18, 2020), in which the Supreme Court held that rescission of the Deferred Action for Childhood Arrivals program (\u201cDACA\u201d) was invalid.\u00a0 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\u2019s ruling that the agency\u2019s action was arbitrary and capricious.<\/p>\n 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] <\/sup>\u00a0The majority did not address the lawfulness of DACA because the agency was bound a later Attorney General\u2019s Opinion that DACA was unlawful. [16] <\/sup>\u00a0Rather the Court\u2019s analysis focused on separate concerns – a failure to consider other actions within the agency\u2019s discretion and a failure to consider if \u201clongstanding policies may have \u2018engendered serious reliance interests that must be taken into account.\u2019\u201d [17]\u00a0\u00a0<\/sup>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 \u2018wind-down\u2019 of the program rather than outright rescission or considering reliance interests when deciding individual cases. [18] <\/sup><\/p>\n Before considering the potential impact of these decisions on the public\u2019s view of the judiciary, a few further comments on the risk of perceived excess judicial activism.\u00a0 First, such an analysis need not decide if a correct legal result occurred.\u00a0 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.\u00a0 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.<\/p>\n Moreover, the moral propriety of the result, even if driven by considerations of conscience, is not dispositive.\u00a0 The issues at stake \u2013 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 \u2013 each enjoy support, albeit to a lesser or greater extent, among various constituencies.\u00a0 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.\u00a0 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] <\/sup>\u00a0Unless and until such questions are satisfactorily answered, a lingering uncertainty may undermine the public\u2019s confidence in judicial independence and neutrality, without which judicial supremacy is endangered.<\/p>\n 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:<\/p>\n None of these questions are impossible to answer while still holding to the result; but the judiciary\u2019s challenge may be to answer without using what might be commonly known as \u2018legal jargon.\u2019\u00a0 This requires recognition that, in \u2018big ticket\u2019 cases with far-ranging societal impact, the audience to be persuaded is far broader than just the usual \u2018lawyers writing for lawyers\u2019 task in crafting opinions.\u00a0 Perhaps courts could write opinions that more readily describe the established legal canons that underly the decisions.\u00a0 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,<\/em> etc.\u00a0 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.\u00a0 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.\u00a0 Dissents could be less acrimonious; for example, detailing disagreement without characterizing the majority opinion as sailing under a false flag. [20] <\/sup>\u00a0Perhaps other, wiser practices might be implemented. [21] <\/sup><\/p>\n A failure to recognize the potential problem, however, may well lead to different, harder to answer concerns.\u00a0 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.\u00a0 How does a litigation model, constrained by the arguments presented by the parties, ensure a full exploration of available policies \u2013 a concern made all the more pressing by the recent unanimous decision limiting the use of amici to broaden the litigation inquiry. [22] <\/sup> 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] <\/sup><\/p>\n 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.\u00a0 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.\u00a0 Reasonable people might shudder to think of the scope of the confirmation process for those appointed for life to exercise such authority \u2013 what lines of inquiry might become fair game to examine a nominee\u2019s 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?<\/p>\n 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.\u00a0 The last six presidential administrations were each challenged about their candor and\/or consistency in dealing with the public on policy matters. [24] <\/sup> Public respect for Congress, while recently somewhat improved, remains painfully low. [25]<\/sup>\u00a0A recent survey indicates continued support for the judiciary, albeit with certain partisan divisions. [26]<\/sup>\u00a0But 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] <\/sup> Proactive action to avoid further grounds for unnecessary widespread disappointment with all three branches of the government might be the better course.<\/p>\n 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\u2019s respect.\u00a0 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] <\/sup>\u00a0 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] <\/sup> The public\u2019s respect, which is the foundation of a reputation for the rule of law, should be jealously guarded.\u00a0 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.<\/p>\n <\/p>\n [1]<\/a> Marbury v. Madison<\/em>, 5 U.S. 1 (Cranch) (1803).<\/p>\n [2]<\/a> See, e.g., <\/em>Federalist No. 78<\/em> (Hamilton) available at https:\/\/avalon.law.yale.edu\/18th_century\/fed78.asp<\/a> (last accessed 6\/25\/20).<\/p>\n [3]<\/a> See, <\/em>Brutus XV, available at https:\/\/teachingamericanhistory.org\/library\/document\/brutus-xv\/<\/a> (last accessed 6\/26\/20).\u00a0 That concern continues today.\u00a0 See<\/em>, G. Weiner, The Not So Supreme Court, available at https:\/\/www.theatlantic.com\/ideas\/archive\/2019\/09\/not-so-supreme-court\/598633\/<\/a> (as accessed 6\/26\/20).<\/p>\n [4]<\/a> See, e.g., <\/em>S. Breyer, FOR THEIR OWN GOOD, https:\/\/newrepublic.com\/article\/63490\/their-own-good<\/a> (last accessed 6\/24\/20).<\/p>\n [5]<\/a> Cooper v. Aaron<\/em>, 385 U.S. 1 (1958) (per curiam).<\/p>\n [6]<\/a> https:\/\/www.supremecourt.gov\/opinions\/opinions.aspx<\/a>.<\/p>\n [7]<\/a> 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 \u2013 The Role of Judges Throughout American History, Ch. 2, available at https:\/\/dra.american.edu\/islandora\/object\/0910capstones%3A52\/datastream\/PDF\/view<\/a> (last accessed 6\/23\/2020).\u00a0 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.<\/p>\n [8]<\/a> See, e.g.,<\/em> Federalist No. 47 (Hamilton), available at https:\/\/avalon.law.yale.edu\/18th_century\/fed47.asp<\/a> (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.\u00a0 See<\/em>, 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<\/a> (last accessed 6\/26\/20).<\/p>\n [9]<\/a> See<\/em>, Frontline Interview of Justices Breyer and Kennedy (1999) (discussing the Judiciary\u2019s need for public respect), available at https:\/\/www.pbs.org\/wgbh\/pages\/frontline\/shows\/justice\/interviews\/supremo.html<\/a> (last accessed 6\/28\/2020).<\/p>\n [10]<\/a> None of the cases selected for discussion here irrefutably indicates the personal preferences of any Justice as the decision-making model.\u00a0 Indeed, the dissenting opinions in Obergfell v. Hodges<\/em>, 576 U.S. 644 (2015) more pointedly decry such a result.\u00a0 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.<\/p>\n [11]<\/a> Bostock<\/em>, Slip Op. at 24.<\/p>\n [12]<\/a> Id.<\/em><\/p>\n [13]<\/a> See <\/em>Transcript of argument No. 17-1618 at 8 and 23 (10\/8\/2019).<\/p>\n [14]<\/a> Bostock<\/em>, Slip Op. at 41, n.5 (Alito, J., dissenting).<\/p>\n [15]<\/a> Texas v. United States<\/em>, 809 F.3d 134 (5th<\/sup> Cir. 2015), aff\u2019d per curiam<\/em>, 579 U.S. ____ (2016).<\/p>\n [16]<\/a> Id.<\/em> at 13.<\/p>\n [17]<\/a> Id.<\/em> at 28, quoting Encino Motorcars, LLC v. Navarro<\/em>, 579 U.S. ___, ___ (2016).<\/p>\n [18]<\/a> Id.<\/em> at 25-26.<\/p>\n [19]<\/a> For a more in-depth discussion on the point, see<\/em> The Judiciary as a New Moral Authority, available at https:\/\/www.brandeis.edu\/ethics\/pdfs\/internationaljustice\/ethics\/Topics%20in%20Ethical%20Practice2006.pdf<\/a> (as accessed 6\/25\/20).<\/p>\n [20]<\/a> Bostock<\/em>, Slip Op. at 40 (Alito, J, dissenting).<\/p>\n [21]<\/a> 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<\/em>, 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.\u00a0 Id.<\/em> At 46-49 (Roberts, C.J., concurring).\u00a0 While perhaps not guaranteeing overall agreement with that vote, the concurring opinion offers an easier to understand rationale for that decision.<\/p>\n [22]<\/a> United States v. Sineng-Smith<\/em>, No. 19-67, Slip Op. May 7, 2020 at 5-11.<\/p>\n [23]<\/a> See,<\/em> 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<\/a> (last accessed 6\/25\/20).<\/p>\n [24]<\/a> See, e.g.<\/em>, https:\/\/www.factcheck.org\/person\/donald-trump\/<\/a> (last accessed 6\/24\/20); https:\/\/www.politifact.com\/article\/2013\/dec\/12\/lie-year-if-you-like-your-health-care-plan-keep-it\/<\/a> (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<\/a> (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<\/a>; https:\/\/govinfo.gov\/content\/pkg\/CRPT-106hrpt1037\/html\/CRPT-106hrpt1037.htm<\/a> (last accessed 7\/7\/20); https:\/\/www.kru.org\/post\/6-little-words-that-helped-make-Geroge-Buish-1-term-president#srtream\/0<\/a> (last accessed 7\/7\/20); and https:\/\/pbr.org\/wgbh\/americanexperience\/features\/Reagan-iran<\/a>\/ (last accessed 7-7-20).<\/p>\n [25]<\/a> See<\/em>, https:\/\/www.statista.com\/statistics\/207579\/public-approval-rating-of-the-us-congress\/<\/a> (last accessed 6\/24\/20).<\/p>\n [26]<\/a> See,<\/em> https:\/\/www.scotusblog.com\/2019\/10\/recent-polls-show-confidence-in-supreme-court-with-caveats\/<\/a> (last accessed 6\/25\/20).<\/p>\n [27]<\/a> See, e.g.<\/em>, Planned Parenthood of Pennsylvania, Inc. v. Casey<\/em>, 505 U.S. 833, 854-69 (1992) (plurality).<\/p>\n [28]<\/a> See, e.g. <\/em>\u00a0note 4 supra.<\/em><\/p>\n [29]<\/a> See generally<\/em>, R. Kipling, The White Man\u2019s Burden (espousing imperialism as a moral mandate), available at www.kiplingsociety.co.uk\/poems_burden.htm<\/a> \u00a0(last accessed 7\/31\/20).<\/p>\n","protected":false},"excerpt":{"rendered":" Photo provided courtesy of Pixabay.com. By David W. Thomas, Class of 1990.\u00a0 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 [\u2026] <\/p>\n\n