With Justice Stevens signaling that he is likely to step down at the end of this current Supreme Court Term, speculation about who President Obama might appoint to replace him is legion. Rather than join in that speculation, however, I want to raise the question of the role of ideology in judging, particularly on the Supreme Court, and the disingenuous way that ideology is discussed – or rather, disavowed – during confirmation hearings. Chief Justice Roberts’ invocations of “neutral umpires” notwithstanding, judging is not a science. There is often no “right” answer to a question – especially to the types of questions confronted by the Supreme Court – in the sense that there is no answer that can be arrived at through the use of pure logic. Such questions might involve the meaning of the Due Process Clause, the scope of the Equal Protection Clause, or the application of a precedent like Brown v. Board of Education to contemporary efforts by school districts to voluntarily integrate. The key legal texts – the Constitution and Brown itself – do not inherently provide an answer. A justice must apply some kind of understanding of the broader meaning of those texts. Doing so is not illegitimately activist. It is inevitable. This does not mean that justices should simply impose their policy preferences without regard to legal sources and arguments, but it does mean that the justice’s priors – her beliefs, experiences, and views – may play a role in the analysis of those sources and arguments.
I am hardly the first to point this out. (Judge Posner’s recent book, How Judges Think, addresses this question in some depth.) But in light of the (likely) upcoming confirmation hearings, the point bears emphasizing. What we are likely to see is that whoever Obama nominates will be attacked as too ideological by at least some Republicans. And if the last several confirmation hearings are any guide, the nominee will disavow any role for political judgments in the judicial role. It is my hope, however, that we will see something else. I believe that it would better serve the country and the Court for a nominee to discuss the way in which such judgments do sometimes come into play, to explain that that such judgments are at times both inevitable and legitimate, and to show that they are often part and parcel of legal analysis. Perhaps most importantly, I would like to hear a nominee describe how he or she would acknowledge the presence of such political judgments without acting as an ideologue or allowing ideology to trump law.
What we have now is, in my view, the worst of all possible worlds. There is a reality – often acknowledged during presidential elections – that a president is likely to appoint justices whose views are generally consistent with his own. And we have the reality – clear to anyone who is paying attention – that the Supreme Court often (although certainly not always) splits along predictable ideological lines. But during the confirmation process, we have a widespread pretense that judging is a purely neutral intellectual exercise. I certainly understand how we have come to this point, but I believe that it is bad for our democracy and bad for the Court’s legitimacy. It may be fruitless to hope for a more candid discussion in today’s hyper-partisan environment, with routine Republican filibusters of even low-level presidential nominees. But it is nonetheless the discussion that I would like to see.