Christopher Ebbe, Ph.D. 7-24

ABSTRACT:  The growing problem of perceiving Supreme Court justices as being biased is discussed.

KEY WORDS:  supreme court, political bias

The Supreme Court of the United States is involved in a troubling public relations problem, as a growing number of citizens view the justices as biased politically.  This is illustrated clearly in the routine description of the Court as being composed of conservative justices and liberal justices (currently 6 to 3 conservative).  It is assumed that Presidents will nominate only potential justices who are biased in the same way as the President’s party.  While it is true that justices do not always vote in what might be assumed to be a biased way, they probably do vote with the “side” for which they were nominated in a majority of the cases before them.  News media and Republicans are claiming that since Judge Barrett was confirmed to the Court, the Court will have a conservative majority for many years to come.  These entrenched and self-serving attitudes by the parties are telling the populace to expect that justices will be biased.  Surely people would trust the justice system more if we believed that justices (at all levels) served our needs for fairness and unbiased opinions.

Sitting justices pretty uniformly claim that the Court is not biased (meaning that the justices are not biased or that they approach each case in an unbiased way, even if they are biased).  The claim is made that they try at least to decide cases based on the law and not on their own political views.  Consistent with this claim, nominees appearing before the Senate for possible confirmation refuse to discuss how they would approach or decide specific cases and cases that are controversial (abortion rights, Citizens United, the Affordable Care Act), asserting that they would consult the law, the previous adjudications around the issue at hand, and their colleagues in the process of making their own decisions.

Many citizens don’t believe these claims of non-bias at all, while many others are torn between this assumption of bias and wanting to believe that the justices are reasonably unbiased while hearing from all sides.  The problem is made worse by the current practice of lifetime appointments to the Court.  It is also made much worse by the fact that Presidents now are party leaders or associated strongly with only one party, which was not so much the case early in the life of the Constitution.  Thus, we have made the nomination process automatically politically controversial since Presidents now routinely if not always nominate judges who are biased like themselves.  (We do expect that party members are automatically biased toward their parties’ beliefs, and perhaps this is having unfortunate consequences for our democracy.)  Thus, our third, supposedly independent branch of government, the Supreme Court, is damagingly positioned by Presidents’ nominations to be biased.

The crux of the problem for citizens is that we acknowledge that the justices have and have a right to their own political views but are supposed to assume that they decide cases in an unbiased way.  Since citizens know, if they are honest, that they are quite unlikely to set aside their own political views as they think about issues before the Court, they have trouble imagining the justices doing that.  These decisions by the justices are not like mathematics—either true or false—but are complex legal issues with significant societal consequences and subject to complicated arguments about what the law actually says.  It would be very easy for personal preference regarding the consequences of the upcoming decision to creep into the justices’ reasoning at least to a small extent, and in fact some Justices openly include societal consequences of their rulings as input for making their decisions (e.g., Justice Breyer).

Another complication is that the justices have different views on how to approach the Constitution, with some restricting their views to how they imagine citizens in 1789 would interpret the wording in the Constitution (“originalists” a la Scalia), and some trying to imagine what those original views would be if updated/analogized to the present situation.  Originalists (sticking to the original meaning in 1789) no doubt feel better grounded, even if that grounding is itself more restricting (restrictions that even the originalists sometimes ignore), while “modernists” (my term) think that sticking to that original meaning can’t possibly be applicable nowadays.  Conservatives assert that modernists end up “legislating from the bench” (i.e., clarifying laws that Congress passes in a way that Congress did not intend).  Liberals think that originalists imagine what the Founding Fathers thought or intended inaccurately, inevitably projecting some of the originalist Justice’s own thinking onto the Founding Fathers.

A fair number of the Supreme Court’s cases involve uncertainties about what the Constitution “means” (issues that the legislative branch has not clarified) and about how the wording of the Constitution affects the current legal dispute.  This vacuum certainly invites the expressions of bias, usually cloaked in justifications based on words in the Constitution and how they are to be understood.  It does seem that the modernists have a less clear basis for interpreting the Constitution, but also that the originalists are hobbled by their “antiquated” understanding of the Constitution.  Our revered Founding Fathers assumed that “citizens” did not include women or Blacks, but originalists never seem to see that as coloring the wording of the Constitution.

Our difficulty here is that we have put our fate in the hands of a small number of citizens, and we must rely on the integrity and good sense of this special group of citizens.  Schemes to change the numbers of judges or establish oversight commissions, etc., would not necessarily help, because ultimately we would still be depending on the integrity and good sense of a small group of citizens (those overseers, or a somewhat larger number of judges, etc.).

From the point of view of psychology, the claims of nominees for the Supreme Court that they will decide strictly by the law cannot possibly be true, since we are not computers and since the matter requiring decision is abstract and often vague to start with.  We approach decisions as whole persons, not as detached intellects, and no matter how much we try to be detached intellects, some of our personal “stuff” will almost always creep in, particularly in cases in which the issues have significant real world consequences for all citizens, including the Justices and their families.  If we assumed (and accepted) that there will always be some, hopefully small amount of bias, we could focus then on the nominee’s capacity and willingness to be detached (to reflect on his/her own decision-making process itself and use this to minimize bias), rather than focusing our Senate affirmation hearings on the potential Justice’s probable decisions on currently important cases.  Perhaps the best we can do is to have justices who are selected for high levels of competence as lawyers and judges and minimum levels of bias, instead of lamenting about why we cannot find Justices with no bias.  The assessment of bias potential and self-reflection capacity and willingness would be difficult, of course, since we assume also that justices want to be appointed if nominated and will inevitably, to some extent, therefore try to present themselves as acceptable to Senators.

Actions that would soften the angst over Supreme Court appointments would be—

• employ a panel of psychologists and judges to evaluate each candidate’s ability to reflect on his/her own thinking so as to self-minimize bias (could be done either before nomination as part of vetting or after nomination for use by the Senate)
• have psychologists who study bias and self-reflection teach Senators how to frame questions for affirmation hearings that may elicit a candidate’s level of bias and ability to self-reflect
• have a Constitutional Convention and revise the Constitution to be more clear and directly useful than it is now (which would at least update the originalists’ basis of operating to the present day)
• amend the Constitution to limit justices’ terms to, say, 18 years instead of a lifetime
• somehow encourage the Court to send some cases back to Congress for clarification of the law instead of assuming that they should proceed to take over that function for the Congress (since Congress, in seeking wording that can be acceptable to enough Congresspersons to pass, often purposely leaves vagueness in the wording of laws)
• somehow encourage the Court to decide during its deliberations on a particular case that they do not have enough evidence (legal precedent, Constitutional wording, etc.) to proceed  (The Court currently declines to take on some cases, and this would encourage them to decide mid-stream not to decide a case as well, thus letting lower Court rulings stand.)  [In my view, the case just decided about the President’s criminal liability for official and non-official acts as President, should have been declined by the Court or given up during deliberations, since there seems to be no firm basis for any decision.]
• amend the Constitution to change the nomination process (e.g., solicit two nominations each from national associations of lawyers or judges, that would be submitted to a bi-partisan (or multi-partisan) panel named by both House and Senate to recommend the best of the lot to the Senate for final OK
• amend the Constitution (or the Senate’s own rules) to require that vacant positions on the Court be filled alternately with a person with a clear conservative bias and then a person with a clear liberal bias.  (This alternative would simply give up the naïve notion that a Justice could be unbiased and would accept the concept that liberal and conservative thinking should be balanced as evenly s possible in the Court!  This would invite closer voting on the Court and encourage more cross-over voting, since it would sharpen the thinking on both sides to create the best possible arguments for the two sides.)
• nominate and appoint only persons who are Independent politically rather than Democrat or Republican (since neither party has more than 30 percent of voters; this would reduce the liberal-conservative problem)

Even though each of these ideas would help in its own way, none are particularly attractive, and we seem to come back over and over again to the selection process.  Again, perhaps our best bet is to simply select persons who have high levels of competence as lawyers and judges, minimum levels of bias, and high self-reflection capacity and willingness to self-reflect.

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