Judges are not 'neutral umpires'

There is a story told in Washington circles about the first term of the Obama administration. Democratic activists were visiting the White House to urge a faster pace of judicial nominations, only to find a brick wall in then-Chief of Staff Rahm Emanuel. Explaining that the administration had its hands full with economic revitalization, Emanuel is reported to have spat out, "I don't give a f--- about judicial appointments."

Flash forward a term, and it's clear that we all ought to give a fig about the courts. In the last two years, 14 lower federal courts have ruled on the constitutionality of gay marriage bans, with all finding that the U.S. Constitution forbids prohibitions against same sex marriage. Of the 16 judges who have ruled for gay marriage, 13 were appointed by Democratic presidents. On the opposing side, all three dissenting judges were appointed by Republicans.

How can this be? Didn't Chief Justice John Roberts tell us in his confirmation hearing that judges are neutral umpires, calling proverbial balls and strikes according to clear precedent? Are jurists, instead, "legislating from the bench," that loathed and loaded term accusing judges of becoming unelected politicians?

A relatively recent book by Professors Lee Epstein and William Bandes and Judge Richard Posner, The Behavior of Federal Judges: A Theoretical and Empirical Study of Rational Choice, provides a more holistic account of judicial decision-making. Drawing on the field of economics and rational choice, the trio describe federal judges as motivated by multiple factors. Certainly, legal precedent plays a role, especially in cases with relatively clear bounds and at lower levels of the judiciary, but judges are driven as much by their ideological and policy goals, desires to cooperate with their colleagues, hopes to be promoted, or intent to present a united front of a court.

The beauty of this approach is that it allows us to differentiate between judges at different levels of the federal judiciary while having more honest discussions about the goals and limits of judicial decision-making. At the base of the judicial pyramid — the trial courts — judges often lack the latitude to impose their personal preferences. The law of homicide, for example, is fairly clear, and even if a judge harbors doubts about a particular shooting, she would be loath to impose her will against that of a jury's decision and face being overturned by a higher court. Even within the appellate courts, most cases are said to be "easy," that is, simply rehashing issues that have been litigated multiple times before to similar holdings.

Only as cases rise to the Supreme Court or present "issues of first impression," particularly on salient social matters, do we see judges rely more heavily on their personal views or hew more closely to their perceived ideology. It's no surprise, then, that many observers can rank the current justices on an ideological continuum when discussing a controversial social issue like voting rights, but are at a loss when the question is an inscrutable subject like the Employee Retirement Income Security Act (ERISA). But, even here, justices can be motivated by other "non-legal" factors besides ideology. Witness Roberts's vote in 2012 to uphold the Affordable Care Act and protect the perceived legitimacy of the court during a presidential election year.

With four members of the current Supreme Court over 70-years-old and the Senate potentially poised to change hands this November, it's time to adopt a more realistic view of judicial decision-making and the limits of judicial discretion. No more should we accept the false notion that the law is translucent and neutrally derived or have to sit through confirmation hearings in which nominees claim, incredulously as current Supreme Court Justice Clarence Thomas once did, that they've never discussed controversial subjects that may someday reach a courtroom. But, neither should we accept the charge that judges are super-legislators, enshrined with life tenure to enact their personal preferences into precedent. Shockingly, judges are people — motivated by many of the same factors as are other professionals. They seek respect from peers and outside observers, desire consensus among their brethren and hope for promotion to higher positions. Certainly, they've been entrusted with the law and do well to account for precedent. But, this isn't a baseball game, and they're not neutral umpires.

Gould is a professor of public affairs and law at American University.

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