Mythologized Impartiality: A Conversation About the Supreme Court’s Checkered Past and Future

Judges have been in the the news a great deal lately, especially this past summer with revelations about several Supreme Court justices’ relationships with and undisclosed gifts from political donors, and a highly politicized election of a justice to the Wisconsin Supreme Court. Then, on November 13, the Court issued new Ethics Rules but still allowed justices to self-determine when they were in violation of any such rules, which critics said made the them unenforceable.

Stanford University Press recently published two books on the court, and took the opportunity to engage Daniel Kiel author of The Transition: Interpreting Justice from Thurgood Marshall to Clarence Thomas and Lori A. Ringhand, co-author of Supreme Bias: Gender and Race in U.S. Supreme Court Confirmation Hearings in a conversation about the current state of the judiciary in the United Sates and to place it into historical context.

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Stanford University Press: Is there more politicization of judges than in the past? And how does politicization of the judiciary (and of judges themselves) affect the work of judges?

Lori Ringhand: I think there is more politicization than we have become accustomed to, but still perhaps less than there has been in the past. In the early days of the republic, the Supreme Court wasn’t mythologized as much as it is today, by which I mean there wasn’t this expectation that the Court would be completely severed from politics and political accountability. Our earliest leaders understood that who sits on the Court matters, and they frequently manipulated court vacancies to seat their allies.

For lawyers who have read Marbury v. Madison, that is what the “Midnight Judges” were all about. The Federalists had just been stomped in the national elections and they tried to pack the courts before they left office. Even in more recent times, FDR’s justices were well-known to have close ties to the White House, and to work with their political allies in other branches—if not exactly in tandem than at least with an understanding of each other’s needs. It is, in other words, a relatively recent phenomenon to expect the Court to stand completely aloof from politics.

That said, understanding that judging and politics cannot be completely separated, at least not at the Supreme Court level, is different than saying certain types of political interactions are not inappropriate or unethical. So I think what we are seeing right now is that second type of concern—that it is inappropriate to leverage public office into certain types of private privilege.

Daniel Kiel: I agree with Lori on the first question and she is right to point to Marbury as a great example—I would caution against any assumption that there was ever a period where the work of the Supreme Court on certain cases could ever be truly separated from politics. What I do think is different today is the extent to which judges are under a political microscope.

That is the result of many causes, such as the emphasis on judicial elections by political actors and parties (which is fairly new), the publicity around judicial confirmations, and, at the Supreme Court, the fact that for the first time in many years (perhaps ever), the ideological alignment of the justices maps precisely onto the political parties. By that, I mean that the liberal-conservative split among the justices matches the Republican-Democrat split among the presidents who appointed them.

That impression that ideology or politics is driving judicial behavior more than in the past is a significant challenge in a society that rests on the rule of law. Impartiality —and, as importantly, the appearance of impartiality—is a key ingredient to trust in the system. Unfortunately, there just aren’t a lot of examples to point to right now of judges defying political winds to counteract the impression that the work of the judiciary at the highest levels is just policy by other means.

SUP: Although there is a myth that judges are able to maintain objectivity in their work, the reality is that judges are human beings, too. Their experiences in life and law practice or even in getting their jobs as judges, whether through election or appointment, can impact how they approach cases. How might a judge’s personal experiences affect their judicial work?

DK: Judges are no different from the rest of us in that their own experiences affect their work in ways both known and unknown. We have seen this throughout history, though I don’t think legal scholars do enough to connect judges as people to their work on the bench. That is a gap I’ve tried to bridge with my project on Thurgood Marshall and Clarence Thomas, two justices whose work cannot be fully understood outside of the context of the world from which each emerged.

Marshall’s formative years in segregated Baltimore and HBCUs provide the foundation of a worldview that it is the government’s responsibility to undo the racial harm it has caused, while Thomas’s encounters with racism a generation later within institutions Marshall had been kept from fuel a very different perspective. This connection between life and work is no less pertinent for other judges and studying it can help demystify the work of the Supreme Court.

LR: I don’t think it is about a lack of objectivity, but rather of perspective. Different people have different life experiences, and those experiences shape how we see and think about the world. There is no “objective” point of view that stands outside of that, there are just points of view that seem more “normal” because they are the ones most often shared by the people who have traditionally held power.

We see this play out when women or people of color are asked if they can be fair or objective when hearing cases involving gender or race. Until recently, that concern was rarely raised when traditional white, male judges heard those cases. Their point of view was assumed to be objective, and only people with different perspectives were seen as at risk of harboring improper bias.

But that’s nonsense. We all have perspectives shaped by our experiences. Good or objective judging isn’t about ignoring that, but bringing it to the table to help more fully illuminate the issue presented.

DK: This is an important point about the ways the life experiences of white, male judges are rendered invisible in how they might impact perspectives. To me, this is part of why it is crucial to work to ensure that the judiciary becomes more diverse, in terms of both life experiences and professional backgrounds.

LR: Crucial, and challenging. We found that during the confirmation hearings for Supreme Court justices, senators question women nominees and nominees of color differently than other nominees. Much of that is probably not intentional, and our hope is bringing empirical data to the table to increase awareness of the problem may help eliminate it.

As awareness grows, senators may well look to curb their behavior to help ensure that all nominees are questioned and treated in similar ways. Increased inclusiveness also may help. Again thinking about this for Senate Judiciary Committee, we may, for example, see positive changes as the Committee itself becomes more diverse.

SUP: Recent polls suggest that Americans’ trust in the Supreme Court is at an all-time low. What do you think is the cause of this growing distrust? And what might be some effects?

LR: I think the biggest problem is that the Court has become too disconnected from even indirect political accountability. Our Constitution is built on a system of checks and balances. Power is divided between different institutions, accountable to different voters, at different times. Ambition is used to counter ambition, to paraphrase James Madison.

The Supreme Court is, very intentionally, inside that system, not outside it. Justices have tremendous power, but under the Constitution they are checked just like the other branches. They can only take their seat after they are nominated by the President and confirmed by the Senate. The Court’s size and jurisdiction can be controlled by Congress, and the justices can be impeached and removed, just like presidents can.

What we have seen in recent decades is the breakdown of these checks on the Court’s power. The constitutional power given to Congress to change the size and jurisdiction of the Court has not been exercised for decades and has atrophied—actually using those perfectly constitutional levers to exercise control over the Court has become a political non-starter.

That isn’t necessarily a bad thing. Manipulating the Court for short-term political gain is not a good idea. But that has been coupled in this particular moment in time with a complete failure in the cyclical distribution of Supreme Court vacancies to check the Court in that more routine way.

Ideally, the Supreme Court remains at least somewhat tethered to long-term public opinion through regularly occurring vacancies. What we have seen in the last decade or so is the utter failure of that process. Strategic retirements, extremely long tenures, the refusal to hold hearings on President Obama’s nominee to fill the late Justice Scalia’s seat, the election of two presidents in twenty years who failed to win the national popular vote, and the growing non-majoritarian skew of the Senate have led us to a place where the Court is increasingly disconnected from the people it purports to govern.

For example, Democrats have won the popular vote for President in all but one election in the past thirty years but have appointed only a third of the justices currently sitting. Another example is that Obama filled just two seats in his eight years in office, while President Trump filled three in a single four-year term. The confirmation process has never perfectly tracked the political cycle, but this degree of disconnect is extraordinary.

DK: Yes, the stakes of judicial vacancies seem so elevated in this moment, which is why I think there has been more discussion of Court reform, such as term limits, than in the recent past. Another potential cause of distrust was discussed above. In its highest profile cases, the Supreme Court’s discourse seems to perfectly reflect the polarization in our society. And the fact that our societal polarization feels more intense only amplifies the perceptions about the Court.

The politicization of the Court undermines trust. But the Court itself is also fueling these perceptions in several ways. First, some of its decisions—the decision overturning Roe v. Wade is the most prominent example—seem to be delivering victories in long fought political battles and reversing precedent outright. Those decisions are coming without much moderation in language that has often kept the Court from extremes in the past.

In addition, case outcomes seem to depend more on politics than legal principles. For example, the Court has considered a variety of cases about presidential power, such as whether the president can cancel student debt or transfer money to construct a border wall. The justices’ positions seem dictated more by the political party of the president taking action than any consistent doctrine.

Finally, the apparent resistance from the justices to an enforceable ethics code at the Supreme Court only adds fuel to the fire.

SUP: You have each published recent books about different aspects of the American judiciary. Could you briefly identify a significant aspect of your book that you think readers ought to know?

DK: Thurgood Marshall and Clarence Thomas were the first two Black Supreme Court justices and from 1967 until the recent confirmation of Justice Ketanji Brown Jackson, each was the only person able to offer a Black perspective in the Court’s conferences. My book looks at the 1991 transition from Marshall to Thomas and the continuing effects of what I argue is the most impactful Court transition of the past seventy-five years.

There are many differences in the approaches of Marshall and Thomas, but I think readers ought to be aware of some of the things they have in common. Both have faced incessant questions about their capacity to serve on the Court and each was often caricatured as a clone of a white justice with whom they often agreed (for Marshall, it was William Brennan; for Thomas, it was Antonin Scalia).

Both elicit strong and highly polarized emotions from supporters and critics alike, more extreme sentiments than other justices. Both root their work in beliefs—albeit very different ones—about the law’s relationship to individuals, particularly African Americans.

And for some of these reasons, I believe both have been largely underestimated for their work on the Court (though Marshall is rightly recognized for his revolutionary career as a lawyer). My book places these jurists, their lives and their work, within important questions of American law and society.

LR: What our research reveals is that women and people of color face a different Supreme Court confirmation process than do more traditional, white and male nominees. They are interrupted more often, have their professional competence questioned more frequently, and are subject to more subject-matter stereotyped questioning (we ask people of color about crime and women about abortion). In addition, Senators use less positive, more negative, and more differentiating words when talking to and about them.

This is a real problem. It can shape how people—including advocates and other justices—see the nominees. Even worse, it can influence how women, girls, and people of color see themselves, and their own potential. As Justice Sotomayor put it once, it risks sending the “crippling message” that they do not belong in these highest echelons of power.

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The Transition: Interpreting Justice from Thurgood Marshall to Clarence Marshall by Daniel Kiel and Supreme Bias: Gender and Race in U. S. Supreme Court Confirmation Hearings co-authored by Lori Ringhand are available via Stanford University Press.