Wednesday, March 4, 2020

Schumer Versus Roberts: Judging is Not Politics: The Constraints on Judging

Yesterday morning, Senate Minority Leader Chuck Schumer made the following statement to protestors outside the Supreme Court: "I want to tell you, Gorsuch. I want to tell you, Kavanaugh. You have released the whirlwind and you will pay the price!"  "You won’t know what hit you if you go forward with these awful decisions."

Chief Justice John Roberts made a rare reply to a political statement, calling Schumer's remarks irresponsible and dangerous.

Liberal law Professor Laurence Tribe also criticized Schumer: "These remarks by @SenSchumer were inexcusable. Chief Justice Roberts was right to call him on his comments. I hope the Senator, whom I’ve long admired and consider a friend, apologizes and takes back his implicit threat. It’s beneath him and his office."  (here)

Schumer's spokesman issued a statement that the Senator's comments had been blown out of proportion and that "he meant the justices would be met with a political movement if they vote the wrong way."

The Washington Post ran an opinion piece by Aaron Blake analyzing the controversy.  Blake wrote, "The chief justice of the United States and the highest-ranking Senate Democrat got into a war of words Wednesday that epitomized how the relationship between our legislative and judicial branches has taken a severe turn for the worse."  Concerning the spokesman's comment, Blake declared, "That explanation is eminently plausible, but even it speaks to the political and judicial moment we’re in. And you could even argue it’s a 'threat' of one sort or another."  He continued, "Schumer was standing in front of the court and attacking the justices even before they ruled on the case. Then, according to his office’s explanation, he warned them about political pressure that would be brought to bear if they rule the wrong way. He was effectively treating them like advocates rather than interpreters of the law."

Significantly, Blake noted, "But generally speaking, no matter how predictable Supreme Court vote splits have been, norms suggest they are to be treated as fundamental disagreements among justices about the Constitution — not as political acts by justices going to bat for one side or another or requiring political pressure campaigns. The balance of power relies upon the perception that the judiciary isn’t just an extension of the two political parties in Washington who have the occasions to appoint the judges."  (He then goes on to give examples of how recent Presidents have treated the Court as a political body.)

I devoted a chapter to judges and critical thinking in my book, How to Teach Lawyers, Judges, and Law Students Critical Thinking: Millions Saw the Apple Fall, but Newton asked Why (2020).  I believe that "despite the great controversies concerning judging, judges are different than legislators. At a minimum, judges are required to justify their decisions in well-reasoned written opinions.  The critical thinking processes I have discussed throughout this book can contribute to these well-reasoned written opinions. . . .  Being able to critically evaluate a case further helps differentiate the role of the legislature, which is based on the will of the people, from the judicial role, which is intended to protect both democracy and the rights of minorities."

Critical thinking processes that help judges be different than legislators include:

1.  Judges developing their professional identities as judges.

2.  Judges becoming metacognitive thinkers.  Do I understand the judging process? What strategies do I use in deciding a case? How do I choose a strategy for a particular case? Do I plan, monitor, and evaluate? Do I realize when I have used flawed thinking? Do I understand how my emotions affect my thinking?

3.  Understanding that judges construct the law from existing sources rather than making the law as legislators do.

4.  Considering all alternatives, and critically evaluating those alternatives.

5.  Critically evaluating all steps in the judicial process.  Did I properly analyze this case? Did I synthesize this rule properly? Did I apply the law to the facts properly?  After having written an opinion, did I evaluate that opinion from the viewpoint of a third party, such as another judge or the attorneys in the case?

6.  Evaluating the judge's objectivity, and searching for cognitive biases that may have influenced the judge's decision, including ethical blindness.

The above are just a few ways that judging is different from legislating.  As many people have stated in reaction to Senator Schumer's comments, the political branches should stop putting pressure on the Court and let it do its Constitutional job.

(Scott Fruehwald)

Update: The ABA condemned Schumer's remarks:

On March 4, ABA President Judy Perry Martinez released the following statement: 

"The American Bar Association is deeply troubled by today’s statements from the Senate Minority Leader threatening two sitting justices of the U.S. Supreme Court over their upcoming votes in a pending case. Whatever one thinks about the merits of an issue before a court, there is no place for threats -- whether real or allegorical.

Personal attacks on judges by any elected officials, including the President, are simply inappropriate. Such comments challenge the reputation of the third, co-equal branch of our government; the independence of the judiciary; and the personal safety of judicial officers. They are never acceptable."  (here)

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