Archive for the ‘Chief Justice John G. Roberts Jr.’ Tag

How Low Public Trust Threatens the Legitimacy of Court Decisions   Leave a comment

Trust is an essential component of procedural fairness, which, in turn, has been shown to be a key source of legitimacy for decision-makers. All public institutions now face serious skepticism from the public about their trustworthiness. However, a trust  deficit – and the resulting lack of legitimacy – are of particular threat to the judiciary. Legitimacy is essential if courts are to be respected and, indeed, if court orders are to be obeyed. Simply put, failure to maintain and enhance the legitimacy of court decisions imperils the judiciary as an institution and the vital role assigned to the judiciary in our Constitutional tradition.

The threat is real. Today, 75% of the American public thinks judges’ decisions are, to a moderate to significant extent, influenced by their political or personal philosophy. Of course, judges have a range of philosophical views and exercise discretion, so some differences of opinion among judges are to be expected. But 75% of the American public also believes  judges’ decisions are, to a moderate to significant extent, influenced by their desire to be appointed to a higher court.

Two recent articles explain the potentially grave implications.

First,  Politico recently published a contribution by law professors Charles Geyh and Stephen Gillers advocating for a bill to make the Supreme Court adopt a code of ethics. They argue:

[I]t would be a mistake for the Court to view the [ethics] bill as a challenge to its power. It is rather an invitation. No rule is thrust on the justices. Under the … bill, the justices are asked to start with the code governing other federal judges, but are then free to make ‘any amendments or modifications’ they deem ‘appropriate.’ A response that says, in effect, ‘We won’t do it because you can’t make us’ will hurt the court and the rule of law.

Second, Linda Greenhouse, a regular commentator on the New York Times Blog “Opinionator,” recently wrote this post about the Foreign Intelligence Surveillance Court entitled Too Much Work?. Greenhouse writes:

As Charlie Savage reported in The Times last month, Chief Justice John G. Roberts Jr. has used that authority to name Republican-appointed judges to 10 of the court’s 11 seats. (While Republicans in Congress accuse President Obama of trying to “pack” the federal appeals court in Washington simply by filling its vacant seats, they have expressed no such concern over the fact that the chief justice has over-weighted the surveillance court with Republican judges to a considerably greater degree than either of the two other Republican-appointed chief justices who have served since the court’s creation in 1978.)

What do these two pieces mean for judges? Both articles highlight how the judiciary itself, if not careful, can contribute to the erosion of public trust in our decisions. To be sure, the erosion of the legitimacy of judicial decisions is not entirely the fault of the Supreme Court, nor of judges in general.  The media, for example, often refers to which President appointed a judge as a shorthand way to explain a decision.  But that is, in part, why Ms. Greenhouse’s piece is important. The Chief Justice is recognized as a brilliant man. He and every other judge in the United States know the inevitable shorthand the media will use to describe judges and to explain their decisions. And so the Chief Justice, the members of the United States Supreme Court, indeed every judge in this country needs to be particularly sensitive to what we are doing that might either advance trust in courts or contribute to the erosion of the legitimacy of our courts. The bottom line is: Appearances make a difference. There will be decisions by judges at every level of court that test the public’s trust in our wisdom. It is therefore imperative that judges act in a manner that builds a reservoir of goodwill so that people will stand by courts when a decision is made with which they disagree. There may have been an era when trust in the wisdom and impartiality of judicial decisions could be taken as a given. But if there was such an era, we no longer live in it. Trust and legitimacy today must be earned.

Kevin Burke

The Healthcare Decision: First Reaction   3 comments

Although we’ve emphasized that it takes time to assess the public’s reaction to a Supreme Court decision—and the effect of that reaction on the public’s goodwill toward the Court—blogs operate in the here and now. So we venture forth with some initial, tentative thoughts.

If opinion polls are a reliable indicator, the public may be disappointed in the outcome of the case—a New York Times/CBS News poll showed that 41% wanted the law struck down altogether and another 27% wanted the individual mandate struck down while keeping the rest. But the Court has had many opinions over the years that have gone against the trend in current public opinion, and in the past that hasn’t caused any lasting damage to the Court’s overall support from the public. In fact, one of the features of the Supreme Court in the past has been its ability to make unpopular decisions without losing public legitimacy, at least in part because the Court has been widely viewed as above politics.

We had expressed concern that this might change if the public perceived the Court had merely acted politically in handling the healthcare cases. Indeed, a Washington Post/ABC News poll showed that 50% thought the Court would rule based on “partisan political views.” So the public was initially skeptical about the fairness of the process.

What does today’s opinion tell the public about the fairness of the process the justices followed in reaching their decision? The initial news coverage has predictably focused on two aspects of the Court’s decision: (1) the outcome upholding the Affordable Care Act and (2) that the majority opinion was written by Chief Justice John G. Roberts, Jr. Indeed, in the big-picture view, which is where public opinion is formed, those are key points. And that means that the Chief Justice—the justice whose very role makes him the face of the Court—will be perceived by many as having decided the case on something other than “partisan political views.” That could certainly reinforce the historic public vision of the Court as an institution that places adherence to the rule of law above politics. In addition, whenever anyone paints the Court in partisan terms, members of the public may think back to the Chief Justice’s key vote in upholding the Affordable Care Act and conclude that the Roberts Court is not simply a political institution making decisions based on policy preferences rather than on the law and evidence.

The Court’s decision confirms our previously expressed view that the Chief Justice indeed had an open mind during oral argument, and that his questions were fair ones to be asked of both sides. In these days of pundits, many commented publicly that it was nearly a foregone conclusion that the Court would find the entire statute unconstitutional—based on what was observed at oral argument. Perhaps this high-profile example that such guesses can be wrong will also be helpful; the public may realize that oral arguments are part of the process of learning about and exploring the issues, not deciding them. An open process in which issues are explored, parties’ positions are better understood, and the Court then retires to consider everything it has heard, fulfills public expectations for procedural fairness.

We’ve only looked briefly at the written opinions at this point. The justices receive mixed grades in terms of being respectful, but—at least in their introductions and conclusions—they have tried to explain basic concepts involving the exercise of government power under the Constitution. But news-media commentary is likely to give prominence to those instances where one or more of the justices indulged in sarcasm and belittled the other side of the decision.

That leads us to wonder whether the justices might yet benefit greatly by writing more for a lay audience than for each other or for constitutional law scholars. When he wrote the draft opinion for Brown v. Board of Education, Chief Justice Earl Warren set out to write an opinion so short that it would be reprinted by newspapers and read by the public. Warren’s memo to his fellow justices accompanying the draft told his colleagues that the draft had been “prepared on the theory that the opinion[] should be short, readable by the lay public, non-rhetorical, unemotional, and, above all, non-accusatory.” He wanted to make sure that the opinion would be understood and accepted by the public.

Perhaps the Affordable Care Act has so many more moving parts than the concept of segregated schools had that it was necessary for the justices to issue opinions totaling 193 pages to decide the case and explain the decision. Even so, we know that public interest in the healthcare cases was high, and many more citizens would have read the opinion—and gained further appreciation for the Court—had the justices written shorter opinions more tailored toward a lay audience. Chief Justice Warren’s opinion in Brown, which took up only 14 pages in the United States Reports (including the syllabus prepared by the reporter to summarize the opinion) may remain a model of succinctness and clarity that modern courts simply do not approach.

In sum, the combination of a well-publicized oral argument that was fairly handled and allowed issues to be explored and a ruling in which the most prominent justice went against partisan stereotyping may augur well for long-term public support for the Court. Time—and future events—will tell.

Steve Leben, Kevin Burke, David Rottman & Tom Tyler

Focused on Fairness: The Public Turns Its Attention to the U.S. Supreme Court   2 comments

Beginning Monday, March 26, 2012, public attention will focus on the United States Supreme Court in a way that’s essentially unprecedented. Sure, there have been many important cases in the Court’s history, but few have had timing like this. It’s a Presidential-election year. The health-care cases divide the country, even if the precise legal issues are not yet well understood by the public. And there are lots of pundits poised to comment, few of whom will actually be objective.

In this environment, the Court will hold three days of oral arguments on issues surrounding the Patient Protection and Affordable Care Act—the 2,400-page law called Obamacare by its detractors and the Affordable Care Act by its supporters. The nation’s 24-hour news cycle will be focused like a laser beam on the Court, but there will be no television cameras, no live radio broadcast, and no blogging, twitter, or other reporting from the courtroom.

Even so, what the public perceives about whether the justices gave a fair hearing to both sides may have a lasting impact on public attitudes toward the judicial system at all levels. What will the public be looking for? And is the Court equipped to provide it?

Based on decades of research, the public will be looking for the elements of procedural fairness—voice, neutrality, respect, and trustworthy authorities. To be sure, the public will also make judgments about the merits of this case. But there is a lot more at stake: the legitimacy of the judicial process is also being tested.

To pass that test with the public, the Supreme Court needs to conduct the argument with a keen eye on the goal of demonstrating that courts decide issues in a way different than the political debates of a presidential campaign or the legislative process. Among other things, to achieve procedural fairness, the justices will need to let attorneys actually make some points without being interrupted, to appear willing to listen (better yet, actually be willing to listen), and to avoid arguing from a clearly predetermined position.

The normal case in the U.S. Supreme Court gets one hour for oral argument. This case is getting five and one-half hours spread out over three days. Allowing that extra time was wise from many perspectives. First, justices who want to explore the issues along with the advocates will have the time to do so, rather than feeling the need to quickly stake out a position and argue for it in an attempt to persuade colleagues in advance of the justices’ private case conference where decisions are made. Second, media coverage will emphasize the extent of time devoted to hearing argument in the case, said to be unprecedented in the modern era. Third, the media will be able to explain each of the major issues during the time slot in which argument is being made.

But even with ample time, the attitudes demonstrated by the justices will frame perceptions of their fairness. Senator John McCain attended the oral argument on the McCain-Feingold campaign-finance bill that he had sponsored. When the Court ultimately ruled in Citizens United v. FEC (2010) that the government could not ban political spending by corporations in candidate elections, Sen. McCain spoke in an interview about the attitudes he had observed during oral argument:

“I was not surprised at the Supreme Court decision. I went over there to observe the oral arguments. It was clear that Justice Roberts, Alito, and Scalia, by their very skeptical and even sarcastic comments, were very much opposed to [the law.].” (CBS, Face the Nation, Jan. 24, 2010.)

Sen. McCain has certainly been around the block and heard harsh attacks. Yet he remembered several months after oral argument that there had been “very skeptical and even sarcastic comments” made by several justices.

Even though the Court refused C-SPAN’s request to televise the hearings, the Court will expedite release of transcripts and audiotapes from its normal practice, in which tapes aren’t released until the end of the week. This time, tapes and transcripts will be posted on the Court’s website as soon as they are available; the Court’s public-information office says that the morning session should be available by 2 p.m. each day and that the afternoon session on Wednesday, March 28 (the only afternoon session), should be available by 4 p.m. that day.

This means that the public will be able to hear—the same day—the tone used by justices in asking questions or, for some justices, making arguments. The admonition given recently in this blog by Minnesota appellate judge Francis J. Connolly is one that members of the U.S. Supreme Court should pay heed to next week: “We need to remember that we are not cross-examining a hostile witness but rather probing an attorney’s argument.”

Because of the media attention that will be focused on the U.S. Supreme Court next week, this will be a seminal moment for public perceptions of the justice system. The justices can do a great service to the country by demonstrating procedural fairness throughout the arguments.

Steve Leben and Kevin Burke

[For background about the Supreme Court’s proceedings on the health-care law, and for links to transcripts and audiotapes as they are released, go to SCOTUSblog.]