Bad news for judicial alarmists is good news for the rule of law

Bad news for judicial alarmists is good news for the rule of law
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There was good news recently for the rule of law in two developments in Washington. First, CNN broadcast an interview with Supreme Court Associate Justice Sonia Sotomayor by David Axelrod. In her remarks, which focused primarily on biographical matters, Justice Sotomayor graciously welcomed the newest justice, Brett KavanaughBrett Michael KavanaughElection 2020: Why I'm watching Amy and Andy Kavanaugh hailed by conservative gathering in first public speech since confirmation Protesters roll out a screen playing Blasey Ford's testimony ahead of Federalist Society dinner MORE, to what she calls her “work family.”

Whatever her private views of his confirmation process may have been, now that it is done, Sotomayor made a point that other justices before her have made — that is, members of the court are called on to work together and the nature of their work is not fundamentally political; it is about the Constitution and interpretation of the law.  

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In saying so, Sotomayor pushes back against the judicial catastrophists, who have pronounced Justice Kavanaugh’s confirmation the end of an impartial Supreme Court. And while that position may have been advantageous during the election campaign, it is time to give it a rest.

Justice Anthony Kennedy, whom Kavanaugh replaced, was by no means a reliable liberal vote. He tacked conservative in most respects, but he took a few notable positions in high-profile cases — such as his landmark decision in Obergefell v. Hodges, the same-sex marriage case — that turned him into a liberal favorite late in his career, when after her 2006 retirement he replaced Justice Sandra Day O’Connor as the “swing” vote on the court. Justice Kavanaugh’s record on the D.C. Circuit Court places him to the right of the justice he replaces, but his jurisprudence is likely to evolve, as it did for Kennedy before him.

The Republican mantra that justices should “interpret the law, not make it” is nothing more than a slogan. It is a response to the Warren Court’s emphasis on individual rights, and the expansion of those rights, a generation ago. But conservatives find new rights, too. It’s a stretch to say that the Second Amendment guarantee of a well-armed militia means that reasonable gun control laws can’t exist in the District of Columbia, as Justice Antonin Scalia, writing for the majority, found in the Heller case.

It is not clear that religious freedom, which the founders enshrined in the First Amendment, was meant to do anything other than guarantee free religious exercise and keep states from getting tangled up with the church — surely it said nothing about whether a bakery open to all trade can refuse to bake a cake for a same-sex couple’s marriage. Courts find new rights in the Constitution regularly; the only difference is that conservatives think that the justices President Trump selected may be more supportive of the rights they like, and not as much of the rights of minorities, women and criminal defendants.  

They also may wind up in disappointment, as has happened in the past. Justice Hugo Black, in his youth, was a member of the Ku Klux Klan — certainly a disqualifier for the high court today, and even in 1937 a reason for concern to some. But once this Roosevelt nominee joined the court, he turned out to be an ally of the civil rights movement in his native South (although his majority opinion in Korematsu, on detention of Japanese-Americans during World War II, shows that Democratic-appointed judges can issue villainous opinions, too).

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Justice Harry Blackmun, nominated by a Republican, President Eisenhower, authored the iconic decision in Roe v. Wade. Justice David Souter, who defected from the conservative fold, likely was a disappointment to conservative President George H.W. Bush. The court works on its members, and where they start is not where they wind up — because the point of life tenure is to make the law and the Constitution the only master of the justices.  

Over time, judicial institutionalism provides a better explanation of the Supreme Court’s behavior than catastrophism. The time spent with other members of the court, the responsibilities of being the “last word,” and the burdens of history mean that justices are more measured and cautious in their decisions than those in the political branch that nominated them might wish. But it also is the case that life tenure is liberating for lower court judges, too.

That is where this month brought more good news. In a ruling in Washington, Judge Timothy Kelly, an appointee to the federal district court by President TrumpDonald John TrumpTrump reversed course on flavored e-cigarette ban over fear of job losses: report Trump to award National Medal of Arts to actor Jon Voight Sondland notified Trump officials of investigation push ahead of Ukraine call: report MORE, ordered the White House to restore the press credentials of CNN White House correspondent Jim Acosta. Judge Kelly did not wait for a trial, which may come later; this was a summary order, the kind courts issue when the matter at hand is urgent and the law clearly favors one side.

In another time it would not be viewed as the least bit remarkable for a district judge to rule against the administration that appointed him. But the judicial catastrophists have persuaded people that the new judges are different in kind from all those who have come before them. Little by little, the judges are going to show that it’s not true.

From the Muslim ban decisions to immigration cases and national security matters, each week, the administration is being handed defeats for its overreach in federal courts around the nation. The decisions are being penned by judges appointed by President Obama and both Presidents Bush; and they are coming — and will continue to come — from Trump appointees. Justice Sotomayor has it right when she explains that the work she and thousands of others do in courthouses around the nation is not politics — it is justice, and we should give the system a chance to operate without prejudging the judges.  

Underscoring this point, on Wednesday Chief Justice Roberts, ordinarily most restrained in demeanor, felt it necessary to rebut a presidential tweet criticizing an immigration decision by Judge Jon Tigar, a district judge in California’s federal court derided by President Trump as “an Obama judge.”   

Roberts declared: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

Meryl Justin Chertoff is executive director of the Aspen Institute Justice and Society Program and an adjunct professor of law at Georgetown University Law Center.