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Should we judge judges by whether their decisions appeal to us?

Should we judge judges by whether their decisions appeal to us?
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Assuming you are not a litigant and have no connection to the outcome of a case, or to a policy central to the skirmish, you probably still would want a judge to decide a case with the result you’d like to see. You don’t necessarily care how or why the judge reached the decision, just that your view prevails. 

For example, we might want the “little guy” to win over the big, bad defendant, such as a corporation for whom a loss likely would mean little. We’d want a child molester to be found liable or, if applicable, criminally guilty, even if he had some valid technical defense. Mere observers typically want a “good” result, even if the judge recognizes that legal precedent bars such a result. Indeed, some judges probably decide on-the-fence cases that way — asking, “Can I do good here?” — although few actually acknowledge it.

In the past few months, public attention has focused on Supreme Court Chief Justice John Roberts’ “swing vote,” just as there once was controversy about the decisions of Justices Anthony Kennedy, Sandra Day O’Connor and others before them. Roberts has an indisputably conservative bent, no question. Yet he voted several times this past term, in key cases, with liberals on the bench — in effect, against the interests of President TrumpDonald John TrumpGeraldo Rivera on Trump sowing election result doubts: 'Enough is enough now' Murkowski: Trump should concede White House race Scott Atlas resigns as coronavirus adviser to Trump MORE and his administration. So maybe he’s not so bad, after all? Roberts voted against the big, bad government on abortion rights, DACA and job protections for LGBTQ workers. Does this mean that he’s not “in the tank” for the right wing after all, as many have thought?

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The truth is, we don’t know. Maybe, as he has aged, Roberts has begun to view life and society and the role of big government differently. Perhaps looking at his potential legacy as chief justice he wants a more balanced court, and his vote has become a way to keep the balance. Maybe he just wants to show the president “who’s boss,” given that Trump has demeaned the court by referring to its composition as “a bunch of Clinton judges, Bush judges and Obama judges.” Maybe Roberts isn’t moving leftward at all — maybe the right has moved so far rightward that Roberts now looks like a moderate.  

But his seeming sway this past term — the New York Times calls him “a work in progress” — is hardly a microcosm of judges around the nation and the way we come to analyze them. Yes, liberals must be pleased by the chief justice’s recent decisions, as they are when conservative Justices Neil GorsuchNeil GorsuchFor Thanksgiving, the Supreme Court upholds religious liberty Supreme Court blocks New York coronavirus restrictions on houses of worship COVID-19: Justice Alito overstepped judicial boundaries MORE and Brett KavanaughBrett Michael KavanaughFor Thanksgiving, the Supreme Court upholds religious liberty COVID-19: Justice Alito overstepped judicial boundaries Defusing the judicial confirmation process MORE hand them “favorable” decisions unexpectedly.

We look to judges to decide each case on its merits, recognizing that they come to the table with a subjective bent that, try as they might, they cannot and probably should not put aside. Lawyers know this and litigate cases with that in mind.

Still, truly capable litigators look for little signs that there may be some sunlight at the end of the tunnel with a particular judge, and it helps them to secure a victory for a litigant who typically wouldn’t expect that particular jurist to provide relief. Is there any better example than Justice Roberts? He voted the “right” way, in the view of liberals, in June Medical Services v. Russo, the Louisiana abortion case, but likely not because he suddenly believes that women have the right to choose. No, he sided with established precedent — from a case just a few years back in which he dissented. In fact, in Russo, he even said that he adhered to his view that supports the denial of the abortion rights in question but was stuck with the court’s prior decision. That’s the judicial philosophy of an institutionalist. And if you think about his record, and the importance to him of the “Roberts Court,” it’s not all that surprising.

But Roberts is unique, given his status and stature. Should we judge judges generally and believe that they’re now “good” judges because they decide what we perceive to be the “right” side? Hardly. Judging a judge should be about his or her complete body of work and the integrity of his or her votes. It’s not about how the judge acts in a particular case, even if the decision takes on an administration or a policy that we find abhorrent — on whichever side of the political, social or cultural divide we sit.

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History will judge what a jurist has done over the course of his or her career. But history’s judgment must be based on the entirety of the judge’s works, and in the context of the time in which the judge was seated. No judicial career — no career or life, in fact — can or should be set by one pivotal decision or act.

One might not like Justice Clarence ThomasClarence ThomasFor Thanksgiving, the Supreme Court upholds religious liberty Defusing the judicial confirmation process Will the Supreme Court take ObamaCare off life-support? MORE’s or Justice Samuel AlitoSamuel AlitoConservative justices seem prepared to let Trump proceed with immigrant census plan for now For Thanksgiving, the Supreme Court upholds religious liberty Alito to far-right litigants: The buffet is open MORE’s judicial philosophy — I certainly don’t. Their rigid votes rarely, if ever, gravitate in the least to the left or to the underdog. But in fairness, they’re both true to their school — that’s who they are, and it’s why they were appointed. For those who disagree with them, the ball is in their critics’ court. Rather than simply saying, “I like this vote” or “I don’t like this vote,” the task is to help ensure that we elect a president who will appoint judges or justices more sympathetic to our way of thinking.  

Is the current liberal wing of the Supreme Court composed of great justices because I might like their decisions? There again, not a way to judge a judge. 

At the end of the day, there are cases that may give a judge the opportunity to go in either direction. In most cases, though, the law is clear and there’s no room for vacillation. Then a judge would be essentially lawless to decide against a precedent, if there’s no true basis to overrule it, or distinguish the facts simply because he or she wants to provide a “favorable” result. Judges don’t become great jurists when they defy the law to please bystanders. 

And we bystanders need to closely scrutinize a judge’s decisions, and the stated reasons for them, before we conclude that he or she is a good jurist.    

Joel Cohen, a former state and federal prosecutor, practices white-collar criminal defense law at Stroock & Stroock & Lavan. He is the author of “Blindfolds Off: Judges On How They Decide” and teaches a class at both Fordham and Cardozo Law Schools in New York based on the book.