Although the lawsuits over health care reform will not reach the Supreme Court for many months, one verdict on the Affordable Care Act is already in: the judges deciding the cases look like political partisans.
Two federal judges have struck down a key part of health care reform and three other federal judges have upheld the legislation. The two judges who found the reform unconstitutional were appointed by Republican presidents; the three judges who ruled in favor were appointed by the Democratic President Bill Clinton. The message seems clear. For judges - just as for politicians, pundits, and activists - views about health care appear to be a simple matter of party affiliation.
Given the bitter partisan debate over health care, it may not be too surprising that the arguments about reform have continued to look political now that litigation is underway. Yet the appearance of partisanship stands in sharp contrast to the image that participants in the judicial process are trying to project. The judicial rulings all dwell on issues of legal principle and are filled with careful arguments about the constitutional limits of Congress's power. Precedent, procedure, text, and the requirements of reason seem to be the only topics of discussion - and not only among the judges. As a lawyer in one of the health care cases told the New York Times, he had "not heard a single partisan remark" from his clients. "The people who brought this lawsuit," the lawyer said, "are all about the law."
How can such claims remain credible when judicial decisions follow an obviously political pattern? Will the partisanship of health care debate inevitably corrode public confidence in the judicial process, leaving people with the sense that the lawsuits over reform are purely a matter of politics?
These questions are prompted by the current litigation, but public opinion about the courts suggests that the concern is actually much broader. A new poll by Syracuse University's Campbell Public Affairs Institute, Harvard, MIT, and YouGov tells us that the public already sees a mix of political preference and impartial principle when it looks at the judiciary.
On one hand, the Campbell Institute Poll demonstrates that large numbers of Americans view courts as restrained institutions removed from the power-seeking motives of politics. Although a small percentage of the public thinks that conflicts end up in the courts because judges proactively attempt to involve themselves in controversies, Americans are far more likely to say that conflicts land in court either because elected officials have failed to deal with problems or because people themselves want the courts to intervene. The courts are busy because the public views them as trusted arbiters.
In fact, the Campbell Institute Poll indicates that the level of public trust in judges is one and a half times higher than trust in the president and five times higher than trust in members of Congress. The high level of trust in judges is coupled with a strong belief that courts are an arena where partisanship has no place. When asked whether judges should be shielded from outside pressure and allowed to make decisions on their own independent reading of the law, nearly 70% of those surveyed agreed.
At the same time, most people do not consider the judiciary to be a politics-free zone. The poll indicates that only a little over 7% of Americans think that the partisan background of judges has no influence at all on court decisions. Almost 45 percent of the public believes that judicial partisanship has some influence and another 42% believe that judicial partisanship has a lot of influence.
With an overwhelming percentage of Americans agreeing that political preference is a factor in judicial decision-making, the claim that judicial rulings are strictly a matter of legal principle is bound to be greeted with substantial skepticism. And, indeed, the Campbell Institute Poll shows that nearly 70% of those surveyed agree with the statement, "Judges always say that their decisions are based on the law and the Constitution, but in many cases judges are really basing their decisions on their own personal beliefs." When asked whether they actually believe the legal justifications that judges offer for court rulings, a large majority of Americans say no.
Much like the health care reform litigation, the poll raises the specter of a delegitimized court system, with beliefs about the impartiality and fairness of judges being eclipsed by suspicions of political decision-making on the bench.
Before raising the alarm about institutional collapse, however, it is worth noting that the poll also points toward another possibility. The fact that trust in judges persists in the teeth of widespread skepticism about judicial motivations suggests that a half-law-half-politics view of the courts may be a stable feature of public opinion.
People value the courts because they are ostensibly free from partisan influence. Yet people may also value judicial proceedings because they lend an air of principle and reason to the pursuit of personal interests and political attachments. Everyone wants to have a neutral and fair system of dispute resolution and everyone also wants to make sure that his or her own side prevails.
The result can certainly look hypocritical, with participants in the judicial process dutifully reciting the requirements of principle while appearing to exploit every opportunity to mold law to their own interests. And we may rightly criticize the unfairness of having judges who invoke law, yet seem to be deciding a case on the basis of politics. But this does not mean that the legal system faces a looming crisis. In the end, health care reform litigation may reveal less about a destructive politics of judging than about the contradictory demands we place on our courts.
Keith J. Bybee is author of "All Judges Are Political - Except When They Are Not: Acceptable Hypocrisies and the Rule of Law"(Stanford University Press, 2010) and professor of law and political science at Syracuse University.
Suggested citation: Keith Bybee, U.S. Public Perception of the Judiciary: Mixed Law and Politics, JURIST - Forum, Apr. 10, 2011, http://jurist.org/forum/2011/04/us-public-perception-of-the-judiciary-mixed-law-and-politics.php.