On The Bench
A fight over a special master in Trump’s documents case underscores how fragile an independent judiciary really is.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Chief Justice John Roberts said in 2018. | Erin Schaff/The New York Times via AP Photo
Opinion by Aziz Huq
09/09/2022 10:01 AM EDT
Aziz Huq teaches law at the University of Chicago and is the author of The Collapse of Constitutional Remedies.
Judge Aileen Cannon’s order appointing a special master to review top-secret documents found at Donald Trump’s Mar-a-Lago club has rightly been ridiculed across the political spectrum — it is a “deeply flawed” decision, in the words of former Trump Attorney General Bill Barr.
But it’s also sparked a more fundamental — and worrisome — debate about judicial independence, one that seemed to have all but abated over the last two years: Is there really a difference between “Obama judges” and “Trump judges,” as the former president once insisted, and as he recently seemed to confirm by his litigation strategy? Or do we have an independent judiciary that rises above politics?
Of course, one ruling by one federal trial judge does not signal a crisis of judicial independence. Yet Cannon’s order underscores the deep fragility of judicial independence and the extraordinary strains it’s of late experienced. The episode is further a timely reminder that there’s no guarantee that an independent judiciary will survive. Just like other public institutions, American courts can unravel and lose public trust, with no easy way to get it back.
To see why, consider what the idea of “judicial independence” means, and how it was nurtured by the Constitution’s framers. The very notion is, in fact, quite unclear — independent from what? and to do what? — and oft bandied about in hazy and opaque ways. But at a minimum, it captures the idea that judging should be free of the immediate, case-specific influence of powerful parties. Of course, both elected officials and those outside government — such as Trump — can have power, and hence influence judges.
In 1787, the Constitution’s framers addressed the problem of improper influence at the back end. This was done by securing judges’ tenure in office and their salary (language that would have allowed periodic adjustments for inflation was nixed, perhaps surprisingly, by James Madison).
At the front end, when judges were appointed, however, the framers turned to the White House and Senate, rather than using a non-political body in the vein of many other countries. Of course, the framers were no fools. They were conscious of the risk of politicized appointments. Indeed, they’d been very critical of men appointed by the English king as governors.
But the drafters of the Constitution assumed that there was little risk of politicized appointments for two reasons. First, they expected the supply of qualified judges to be very limited. Second, they viewed the Senate as a disinterested body, “standing above politics.” Of course, both assumptions quickly foundered with the rise of law schools and national political parties. And the federal judiciary attracted partisan labels as early as 1800. Judicial independence, in short, was compromised early and deeply by the failure of the framers’ guiding assumptions.
This deep, structural fragility does not matter if national politics aren’t polarized. Absent sharp party divisions, indeed, the Senate will act nearly unanimously on nominees such as Antonin Scalia (98-0) and Ruth Bader Ginsburg (96-3). Absent polarization, judicial selection isn’t… well, polarized. But today’s Senate, like national politics generally, is at peak polarization. Voting for any qualified Supreme Court nominee put forward by the opposition party president flies in the face of senators’ electoral incentives. The result is a judicial confirmation process unavoidably and deeply colored by a sense that judges are partisan actors.
In addition to fiercer confirmation wars, polarization has led to a more intensive infrastructure of well-funded interest groups to support or oppose judicial appointments, and then churn out “constitutional arguments” that (shock!) happen to align with a group’s policy positions. With so much money sloshing around, skepticism about what’s law and what’s politics is foreseeable.
Polarization in the Beltway sets the stage for new, crushing pressures on judicial autonomy. Perhaps the most salient prong in this assault has been Trump’s insistence that judges appointed by his predecessor were biased and “out of control.” That remark drew a rare rebuke from Chief Justice John Roberts, who has strenuously, and increasingly against the current, tried to protect the judiciary’s image in the public eye.
“We do not have Obama judges or Trump judges, Bush judges or Clinton judges,” Roberts said in 2018. Predictably, the comment had no effect on Trump, who promptly tweeted that the chief was wrong.
Trump’s rhetoric about judges’ partisanship has been picked up by others. The magistrate judge who authorized the Mar-a-Lago search has been criticized by Sen. Marco Rubio (R-Fla.) for donations to the Democratic Party. Indeed, the trope has spread to the judiciary: In 2019, Supreme Court Justice Clarence Thomas (baselessly and recklessly) accused an Obama appointee to the lower courts of partisan bias. At the same time, there’s a certain piquant irony to Thomas’ accusation. His wife, Virginia Thomas, has courtedpublic notoriety with her vigorous lobbying and activism on behalf of not only keeping Trump in office (including on Jan. 6, 2021), but also for many of the conservative causes that bring cases before the high court. Such activity has, quite predictably, cast a public shadow on her husband’s activity on the bench.
The right has no monopoly when it comes to a rhetorical assault on judicial independence. The left-of-center push to “pack the court” is based on the premise that the present bench is biased to the right with some appointments being criticized as “illegitimate.” The impression of such bias is fostered by recent, high-profile high court decisions. These have snuffed out precedent that the right loathes on abortion and guns while declining to reconsider precedent that protects police officers from tort suits. At the same time, the left is also exercised by evidence that ordinary state courts, which handle ordinary criminal matters, are biased against racial minorities and operate largely as cash cows for financially strapped cities. The ensuing sense of a judicial establishment ill-serves the interests of many taints views of the federal courts too.
It is in this context of pervasive skepticism about the quality of American courts that Cannon issued her order. In its details, it confirms and exacerbates skepticism about the idea of an apolitical bench. Even conservative commentators have flagged its sharp swerve from the normal treatment criminal suspects receive based on “irrelevant” considerations about Trump’s “reputation.” Concerns were stoked when Trump’s lawyers “went shopping” for a judge he’d appointed — rather than appear before the magistrate who’d issued the original warrant — and who’s received death threats for his pains from the former president’s supporters. And they flared further when Cannon telegraphed her intention to rule for the president who appointed her even before the Justice Department had filed any papers.
Cannon’s order, then, is troubling not just in isolation as a “deeply flawed” decision on its specific merits. It also should worry because it seems to affirm, and hence accentuate, a larger narrative of fracturing judicial independence.
Whether one ultimately believes that the federal courts are increasingly partisan, or whether one is focused narrowly on public confidence in the courts as part of our democracy, the trend line is clear: It is sloping downward toward a real crisis of the federal judiciary, with decisions like Cannon’s nudging us along incrementally. It’s impossible to know what form that might take in the end. But the prospect that the Supreme Court intercedes in the 2022 or 2024 elections — and in so doing shreds what’s left of public confidence in the judiciary — can’t be ruled out.
© 2022 POLITICO LLC