The Myth of Neutral Supreme Court Justices

By Eric Segall

Senator Grassley today wrote a response on SCOTUS Blog to President Obama’s essay on the same site arguing that the Senate should fulfill its constitutional duty to give his nominee to fill Justice Scalia’s vacant seat a full confirmation hearing. The main point of Grassley’s essay was to air his disagreement with the President that a Supreme Court Justice’s opinion, in hard cases, “necessarily will be shaped by his or her own perspective, ethics, and judgment,” and he will “arriv[e] at just decisions and fair outcomes” based on the application of “life experience” to the “rapidly changing times.”

Grassley took issue with that description of a Justice’s obligation, claiming that Justice Scalia “crystallized the proper alternative understanding of the role of a Justice as adhering to the rule of law, which he famously defined as a law of rules. He understood that a Justice lacking a commitment to the rule of law would always be tempted to find congruence between the direction in which times were rapidly changing and his or her own policy preferences.” The rest of Grassley’s essay focused on the choice the American people should make themselves between a Scalia-like Justice who follows the law and a potential Obama nominee who would impose his own values and preferences on the American people.

Senator Grassley’s essay is woefully ignorant (or just dishonest) about how Justice Scalia decided cases and how the Court as an institution operates. Justice Scalia, quite obviously, imposed his own personal preferences on constitutional law for over a quarter of century detached from the rule of law as Grassley describes it. As Judge Richard Posner and I wrote on this blog a few months ago:

Justice Scalia has repeatedly voted to strike down state and federal laws the text and history of which did not compel invalidation. He voted to strike down Section 4 of the Voting Rights Act (despite its passage by a unanimous Senate), every affirmative action law he has ever faced, a wide variety of campaign finance laws, federal civil rights laws as applied to the states, laws restricting the private ownership of guns, and laws enacted under Congress’ commerce clause power regulating both private businesses and the states.

Of course, Justice Scalia is no different from all the other Justices who have ever served on the Supreme Court in terms of how their personal preferences affected their actual votes (although Scalia was different in terms of the hypocritical indignity he expressed at others for engaging in the same conduct in which he Scalia engaged). Senator Grassley must know that when constitutional text is vague and history contested, one’s life experiences and personal, moral, religious, cultural, and partisan values will inevitably come into play. The Supreme Court has struck down hundreds of state and federal laws over the years, sometimes acting in a conservative fashion and sometimes in a liberal one, but it is the extremely rare case where text and history clearly point in one direction or the other. One does not have to completely embrace legal realism to know that personal values and preferences play a major role in constitutional (and other) cases.

The myth that there are two different types of Supreme Court Justices and that the American people should be allowed to “choose” the one they want by voting in the next election is unsupportable. Whether we are talking about Chief Justice Roberts or Justice Kagan, Justice Brennan or Chief Justice Rehnquist, personal preferences have played a major role in Supreme Court decision-making. Absent a strong presumption against overturning the decisions of other political actors, a presumption the Court has an institution has not possessed since at least 1857 when it prevented Congress from ending slavery in the territories, the Justices’ sense of fairness and justice will play a much larger role than text and history in shaping their decisions. Senator Grassley should know better and not perpetuate silly myths about our nation’s highest Court.