Procedural Fairness For Courts and Judges   resource and discussion on procedural fairness

In our last blog post, we said that the public attitudes about the judicial system at all levels could be significantly impacted by how well the justices of the United States Supreme Court adhered during oral argument to the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. So how did the justices do? It’s an important question: This case has the potential to increase the sense of legitimacy in judicial decisionmaking, and it also has the potential to be a train wreck.  Despite the importance of oral arguments, whether one of those two extremes will occur will be very dependent upon the final written opinion.  But the oral arguments certainly set the stage for how people will view the process by which this case is decided.

On the whole, the justices performed reasonably well during oral arguments. Most asked good questions that seemed to be honest attempts to explore the strengths and weaknesses of each party’s positions. And this was certainly the case for the two justices whose role in the oral arguments probably mattered the most in public perception:  Chief Justice John G. Roberts, Jr. and Justice Anthony M. Kennedy—Roberts because as chief justice he runs the show, and Kennedy because he is widely seen as the swing justice these days when the court is closely divided.

Both Chief Justice Roberts and Justice Kennedy asked questions of attorneys both for and against the Affordable Care Act. And both tried to explore the issues in an even-handed way. For example, while Roberts asked tough questions of the government’s lawyer regarding the individual mandate, he also interrupted one of the attorneys arguing the other side to have him respond to what Roberts perceived as the government’s main point. Kennedy openly discussed “concerns” he had regarding each side’s position. To opponents of the law, Kennedy asked that they address his “concern in the case” that the young person who chooses to be uninsured is “very close to affecting” insurance rates for others “in a way that is not true in other industries.” Kennedy also asked detailed questions of the government, which based part of its defense on the principle that the government had exercised its taxing power as authority for the mandate for each individual to buy health insurance. Kennedy asked them to assume that the government indeed could have used its taxing power and directly created a single-payer national health plan. He then said that “it can be argued that this is what the government is doing; [the government] ought to be honest about the power it’s using and use the correct power,” to which the government’s attorney provided a response.

Chief Justice Roberts acted evenhandedly in presiding over the arguments. Although the justices and frequent court-watchers may be used to it, the public was no doubt surprised by how often justices interrupted one another—and also interrupted attorneys while the attorney was still responding to another justice’s question. Roberts frequently asked attorneys to return to the question that had initially been asked by another justice but not fully answered, ensuring that the advocates had a fair chance to respond to the important questions that the justices had posed to them. From a fairness standpoint, however, it would be much better if justices didn’t interrupt each other so frequently, and if they allowed attorneys to finish their answers to other justices’ questions.

Media accounts of the arguments have tended to focus on attempts to predict the outcome based upon questions asked or attitudes exhibited during oral argument. Arguments from judges who have carefully studied the briefs often will produce some questions that express tentative positions, which  is to be expected. While that may be the case, most of the questions still were usually fair ones that gave the attorneys a chance to respond to what the justices saw as weaknesses in their positions. Appellate advocates appreciate having the chance to address the points that are on the minds of the justices, and the justices generally gave them that chance.

Experienced lawyers—and judges—will tell you to be cautious about reading too much into a judge’s questions and comments during oral argument. Sometimes a judge will ask questions to confirm a tentative position the judge has arrived at based on the briefs. Sometimes a judge is aware of concerns a colleague has and will use the oral argument to garner support for a majority opinion. Sometimes a judge really has reached an immovable position. Two respected federal appellate judges once kept track—for 10 months—of how often oral argument had changed their minds in a case; one judge said it had 31 percent of the time and the other 17 percent. The confidence of pundits notwithstanding, it’s not always possible to tell how a case will come out based on the oral argument.

Only one justice simply seemed tone-deaf at times to the principles of procedural fairness:  Justice Antonin Scalia. From a fairness standpoint, the public wants to perceive that the justices are considering the issues based on neutral legal principles, not in any political way. Yet Justice Scalia was the only one to introduce partisan politics directly into the discussion.

During the argument about whether the Medicaid provisions were unconstitutionally coercive on the states, attorney Paul D. Clement was explaining that 26 states thought it was a bad deal for them. Scalia interrupted and framed the issue as a purely political one:  “Mr. Clement, I didn’t take the time to figure this out, but maybe you did. Is there any chance that all 26 States opposing it have Republican governors, and all of the States supporting it have Democratic governors? Is that possible?” Clement replied, “There’s a correlation, Justice Scalia.” The transcript shows that Scalia then said, “Yes,” followed by laughter from the audience. Scalia left it there, and another justice asked an unrelated question.

No one—Scalia, Clement, or anyone else—suggested how the party affiliation of the governors could relate to the legal issue being discussed. As far as we can tell, Scalia injected partisan politics directly into the discussion at this point solely to lead to a laugh line.  Humor does have a place in arguments before judges.  But a judge interjecting humor should be careful. Justice Scalia’s laugh line may well have come at a cost, as it undermined what we presume is the court’s desired perception that it decides case like this based on neutral legal principles, without consideration of partisan political overtones.

Justice Scalia made at least one other potentially questionable comment.  In an argument of this length, people—and justices are people—do make mistakes, but this mistake was profound and went to undermining the trust people need to have about judges. When discussing whether the entire law should be struck down if the court strikes down the individual mandate, Justice Scalia made a perjorative reference to a provision that was contained in the Affordable Care Act but ultimately did not become law:  “[I]f we struck down nothing in this legislation but the—what’s it called, the Cornhusker kickback . . . [i]t was the means of getting the last necessary vote in the Senate. And you are telling us that the whole statute would fall because the Cornhusker kickback is bad. That can’t be right.” Using the term “kickback” in referring to a provision that provided benefits to one state, Nebraska, in exchange for the vote of its senator sounds more like a political attack ad than the sort of question a neutral judge would ask. It’s odd that Justice Scalia would ask such a question because his consistent position is that in interpreting statutes, legislative-history materials (like Congressional debate transcripts) should not be consulted, let alone the sort of media coverage that led to public discussion of the Nebraska provision. And while the provision Scalia refers to as the “Cornhusker kickback” was in the Affordable Care Act, another bill repealed it before it took effect. So the use of this example seems gratuitously partisan, even if that was not the intention.

Justice Scalia made one other comment that runs contrary to the image the public wants for its Supreme Court justices, and once again he ran aground by attempting to inject humor into the proceedings. When the attorneys were arguing about whether some of the provisions of the Affordable Care Act could remain in effect if the individual-mandate provision is struck down, Scalia invoked the Eighth Amendment’s prohibition on cruel and unusual punishment while expressing astonishment that the attorney had suggested justices review the full statute to determine what could remain in effect:  “[W]hat happened to the Eighth Amendment? You really want us to go through these 2,700 pages?” The transcript shows laughter in response. But Scalia ended the exchange with a more serious suggestion that it really was unfair to ask a Supreme Court justice to read the Affordable Care Act in full:  “Is this not totally unrealistic? That we’re going to go through this enormous bill item by item and decide each one?”

Other justices suggested that such a review wasn’t needed, anyway, based on the nuances of past Supreme Court cases on how to decide whether to strike down an entire statute or only parts of it. But a member of the public listening to the argument could easily have been left with the impression that Justice Scalia—a lifetime appointee to the nation’s highest court—wasn’t willing to take the time to read the full statute passed by Congress to make his decision. The public wants judges who will take all the time needed to make a good decision on an important issue, and the public certainly regards the issues in play here as important ones.

It’s too early to fully evaluate the court’s handling of these cases from a procedural-fairness standpoint. The written opinion or opinions of the justices are likely to have a much more profound impact on how the American people view judicial decisionmaking than the oral arguments. Ideally, the opinion would be joined by more than five justices, which itself would suggest that the justices reached consensus on neutral principles that transcend party affiliation. But whatever the vote margin, opinions that honestly acknowledge the sincerity of opposing views while carefully explaining the basis for the decision (or dissent) will help the nation to respect the judicial process. Anything less could cause lasting damage.

Steve Leben and Kevin Burke