The Supreme Court and beyond, how partisan are America's judges?

One September Saturday, Judge Wendell Griffen swaps his robes and courtroom for a crisp suit and a stage at a conference about mass incarceration. He’s the penultimate speaker, and he’s about to talk about the death penalty.

“But first a disclaimer,” he says, and brings up a slide. The crowd, full of like-minded activists, laughs.

“No opinion, statement, or conclusion in this presentation,” the slide reads, “represents the position of the Arkansas judiciary or any other person serving in the judiciary – whether in Arkansas or elsewhere.”

Judge Griffen, who serves in Arkansas’ 6th Judicial District, doesn’t occupy the most glamorous or powerful position in the US judiciary. Still, his decision to join an anti-death penalty rally last year understandably raised eyebrows, not least at the state supreme court, which permanently banned him from hearing death penalty cases last year.

But Griffen points out that judges have free speech rights too – and in an ongoing lawsuit, he claims the state supreme court has violated them.

Griffen is an outlier, to be sure. Few judges are willing to air their views publicly on divisive social and political issues. And, observers say, the vast majority of cases decided by judges – including Griffen, and even the United States Supreme Court – do not involve divisive issues. But “the law is not set in stone as people think it is,” says Laurie Levenson, a professor at Loyola Law School in Los Angeles. “Judges are human beings, and I think judges know the law needs changes and it’s part of their role to make those changes.”

This reality also means that judging comes with the trappings of politics. While much of the job is simply applying laws to settle disputes, it on occasion involves discretionary power that can affect policy. Where judges are supposed to differ from politicians is in exercising their political power in a nonpartisan manner, not letting ideology influence their decisions.

The federal judiciary has become more partisan, however, including at the Supreme Court, which opened its new term Monday. There, the most divisive cases often see Republican- and Democratic-appointed justices voting in blocs. President Trump has said that reshaping the federal judiciary may be “the most important thing we do.”

Mr. Trump’s nomination of Judge Brett Kavanaugh to the high court has exposed this partisanship like never before, many experts say. In emotional and fiery testimony to the Senate Judiciary Committee on Thursday, Judge Kavanaugh described the sexual assault allegations, which he denies, as “ a calculated and orchestrated political hit” fueled by anger against Trump’s election victory and “revenge on behalf of the Clintons.”

His testimony “sounded like something we’ve never heard before” in a Supreme Court confirmation hearing, says Professor Levenson.

“He can be angry, he can be frustrated, he can say, ‘This is too political a process,’ but he sounded more like a political candidate than a judicial nominee,” she adds. “We’ve all known [confirmations] are a political process, but the fact that he felt free to inject so many partisan references into his remarks I think says that this process has changed.”

Speaking at the Texas Tribune Festival the day after the hearing, conservative commentator Bill Kristol said the institution of the court “is damaged in a way that it really hasn’t been” before.

“We’ve had people who’ve been quietly partisan, people who’ve gone over the edge a couple of times in expressing their views. We’ve never quite had this,” he added. “The courts are pretty [respected], that’s what polls show and that’s what I personally feel. I do worry therefore about jamming through Kavanaugh on a purely partisan vote. I think there will be some damage done.”

In short, judicial behavior and decisionmaking are now under intense scrutiny. The tension between applying the law and deciding when to change it has become especially acute. For the general public it raises questions: How partisan has the judiciary become? And how do judges separate their personal views from their decisions in cases? For legal scholars it raises concerns.

“First we had this idea put forward by politicians that good judges mechanically apply the Constitution and there’s no judicial discretion,” says Kermit Roosevelt, a professor at the University of Pennsylvania Law School. “Now the public is going to think all the judges are political, and neither of those is healthy.”

'Law is a value construct'

There are important nuances to consider here. Federal judges have become more partisan, in part because they are all confirmed through the highly polarized US Senate confirmation process and because they hear more contentious cases, experts say.

“At the federal level the president, through his advisers, is able to try to fine-tune the ideological balance that they want,” says Bill Raftery, a senior analyst at the National Center for State Courts.

“Over decades the system that’s in place at the federal level has been moving in one direction,” he adds, “and that appears to be a direction that’s much more partisan and much more combative over judicial appointments.”

State court judges like Griffen, who can reach the bench in dozens of different ways and generally hear more routine cases, are largely immune to this trend.

But all judges are subject to similar ethical obligations, and Griffen has been testing his ethical limits.

“There are some people who choose to believe that judges do not have values other than the values we pronounce or declare in our rulings, or that the values we have should somehow remain secret, unknown,” he says. “I’ve never bought into that.”

It’s the day after the mass incarceration conference, and Griffen is sitting in his office at the New Millennium Church in the gray slacks and a yellow and brown dashiki he wore while delivering his sermon that morning. Perhaps unsurprising for a preacher, he speaks comfortably, eloquently, and at length about why he’s “never bought into that.”

He speaks about Brown v. Board of Education, the landmark US Supreme Court decision declaring segregation unconstitutional under the 14th Amendment’s equal protection clause. Not because the church is four miles from Little Rock Central High School, the scene of forced desegregation four years after Brown that led to the high court reaffirming its ruling, but because it exemplifies his view that “law is a value construct.”

“The text of the 14th Amendment [when Brown was decided] was the same language as in 1868 when it was ratified by Congress,” he says. “What changed was the notion of what the people who understand what that law means thought is right, and I think that’s healthy.”

“It’s important for we judges at every stage to hold that tension inside us and wrestle with it,” he adds. “I think it’s very dangerous for us to pretend the tension doesn’t exist.”

Civil rights era and the rise of partisanship

It took four years for the Brown ruling to take effect in Little Rock. In rural Delight, Ark., where Griffen grew up, it took another six. Watching future Supreme Court Justice Thurgood Marshall and other black lawyers fight for and win civil rights in the courtroom, he says, inspired him to go to law school.

It was around the civil rights era when the federal judiciary started to become more partisan. And it has largely stayed that way ever since, according to research by Robert Carp, a political scientist at the University of Houston who has been studying the voting behavior of federal district judges for about 50 years.

The American judiciary is designed to be the least powerful but also the least accountable of the three branches of government. Federal judges have lifetime appointments, while state judges have longer terms than most other office-holders and no term limits. For this reason, public confidence in the judiciary’s fairness is critical to its strength, observers point out. Partisanship is a direct threat to that confidence.

From 1934 to 1966, Dr.Carp has found there was very little difference between how judges appointed by Republican presidents and judges appointed by Democratic presidents ruled. But starting in 1967, Democratic judges were “consistently more liberal than their Republican counterparts.”

Up to that point, the ideology of individual judges simply hadn’t mattered that much to presidents, he says. Lyndon Johnson, however, was aggressive in appointing liberal judges who would strengthen his push to broaden civil rights. He was followed by Richard Nixon, who campaigned in 1968 on the Supreme Court being too liberal and then confirmed more ideologically conservative judges.

For probably 90 percent of the cases federal district judges hear, “it doesn’t make any difference whether the judge is Republican or Democrat,” Carp says.

But it’s in that small number of cases – typically ones that raise ambiguous or unprecedented questions – where the particular views and ideologies of a judge do come into play. Those cases can affect large numbers of people, particularly as you climb the hierarchy of the federal judiciary to the Supreme Court, and have the biggest implications for public confidence in the courts.

“It’s not always malicious.… [Judges] have to do the best they can with an [ambiguous] situation,” says Carp. “If it were that obvious you could just have a computer do it, but there’s a human factor in it.”

“If it weren’t common knowledge what difference it makes based on what their values are there wouldn’t have been all this chaos over the Kavanaugh hearings,” he adds.

The Supreme Court seems to receive more media coverage and public attention than every other US court combined. While that is justified to a degree – its decisions apply nationwide, and it is the only court with the power to overturn precedents – federal courts of appeal have much more power than many people realize. And it is at this level that Trump could have the most influence.

The Supreme Court takes fewer than 100 cases a year, so the 13 federal appeals courts often have the final word on interpreting federal law. Trump has appointed 26 judges to these courts so far, a record pace, with many of them given the seal of approval by the conservative Federalist Society. Since most of those appointments have replaced other Republican-appointed judges, Trump’s ideological imprint on the appeals courts has been limited so far. But there is evidence that appeals courts have become more partisan in recent years, and that Trump’s nominees will continue, if not deepen, this trend.

In 2007, Judge Carolyn King – who at that point had served for 28 years on the US Court of Appeals for the Fifth Circuit, including a seven-year term as chief judge – gave a speech in which she described the rise of “clique voting” in appeals courts, voting “with or at the direction of other like-minded judges simply because they share common ideological objectives.”

Hearing upwards of 450 cases a year, she said, it would be rare for more than one judge in a three-judge panel (which is how appeals courts hear most cases) to have a deep knowledge of the record and the law in any one case.

Thus “a judge who has been selected primarily for his perceived predisposition to decide cases in accordance with a particular political ideology may be consciously or subconsciously influenced to decide cases in accordance with that ideology,” she added, “rather than … an impartial and open-minded assessment of what the law actually is.”

“After three decades of judicial appointments based on partisan ideology, it should come as no surprise that clique voting happens, albeit infrequently, in more than one (but, I think, not many)” federal appeals courts, she continued.

While most experts think it is still too early in their tenures to know just what effect Trump’s appointments will have on partisanship in the judiciary, anecdotal evidence shows they have strong conservative views on several contentious social and political issues.

• Last year Judge Amul Thapar, appointed to the Sixth Circuit Court of Appeals, joined a 9-to-6 decision upholding the practice of a Michigan county board to open meetings with a prayer and ask audience members to “assume a reverent position.” (The Fourth Circuit had ruled the other way in a similar case last year.)

• Judge Amy Coney Barrett, appointed to the Seventh Circuit Court of Appeals, voted to deny the full court rehearing a panel decision dismissing a lawsuit against an auto-parts store over allegedly segregating its workforce.

• And Judge James Ho, appointed to the Fifth Circuit, described abortion in one opinion as “a moral tragedy.”

Like any judge, the vast majority of cases heard by appeals court judges are nonpartisan and straightforward and don’t involve contentious social and political issues. Even the Supreme Court, which hears only the tough cases lower courts can’t resolve, rules unanimously far more than many realize – in 36 percent of its cases since 2000, more than any other result.

But split decisions – particularly when they split 5-to-4 along partisan lines, as several high-profile decisions from public union fees to Trump’s travel ban did last term – are what capture public attention.

“Judges differ in terms of what their ideological perspectives are. That’s true at the federal level and it’s true at the state court level,” says Mr. Raftery. “The vast majority of those have no great social or political implications.”

“The vast majority of cases filed in the United States are [also] filed in state courts,” not federal courts, he adds, “and the vast majority of those have no great social or political implications.”

The case of a father, son, and a backhoe

At one bench trial Griffen heard in September, social and political implications would have been impossible to find even with an electron microscope.

Two years ago, Bobby Wade Jr. sued his son, Scotty, after he refused to follow an eviction order. Scotty had breached his rental agreement by not properly maintaining the property, his father claimed. Scotty filed a countersuit alleging not only that it was his father who had breached the agreement, but also that his father promised him the property and that he was the rightful owner of a backhoe.

After hearing testimony from four members of the Wade family, another of Bobby’s tenants and two of Scotty’s friends, Griffen ruled in favor of Bobby on every claim.

“I don’t have the ability to make anyone feel good about my decision,” he said. “One-hundred percent of the time someone walks out of my court upset, but everyone is entitled to their day in court, and I hope you felt you got that today.”

A death penalty case it was not. But those cases rarely came to Griffen – until last year at least.

The state of Arkansas had not executed anyone between 2005 and April 2017 when, with a key lethal injection drug expiring at the end of that month, it scheduled seven executions over 10 days. On Good Friday, after a complaint from the distributor, Griffen issued an order temporarily blocking the state from using one of its lethal injection drugs. A few hours later he attended an anti-death penalty rally outside the governor’s mansion, tied with rope to a cot “in solidarity with Jesus.”

Three days later the Arkansas Supreme Court banned him from presiding over future death penalty cases, or cases concerning the state’s method of execution. State lawmakers called for him to be impeached.

Griffen did not only protest against the death penalty. A few days earlier he wrote in a blog post that the premeditated killing of defenseless persons, even those convicted of murder, “is not morally justifiable.” He points out, however, that three weeks before his protest he dismissed a petition from death row inmates appealing their method of execution because an earlier state supreme court ruling compelled him to. (He did also call the higher court’s ruling “plain and troubling.”)

“I think it’s a disqualifier ... to act like your thoughts are somehow irrelevant to how you rule,” he says. “What you have to decide is how you are going to shepherd your thoughts so that your personal views are not the controlling factors on the outcome of a case.”

This philosophy reaches to the highest levels of the US judiciary. The late Justice Antonin Scalia regularly defended his vote upholding the right of protesters to burn the American flag even though he disagreed with it. “If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag,” he said in 2015. “But I am not a king.”

The expectation that judges will separate their personal views from their legal rulings is becoming more acute as experts say that the element of surprise – where a judge may rule counter to their individual ideology – is disappearing, at least when it comes to that small minority of cases that deal with divisive issues. That trend crystallized this summer with the retirement of Anthony Kennedy, for decades the Supreme Court’s “swing” justice, some experts say. His retirement is “the farewell to even the pretense of dispassionate, nonpartisan jurisprudence” on the high court, Garrett Epps wrote for The Atlantic. Dahlia Lithwick wrote for Slate that his departure is “a bracing reminder that there is no longer [an ideological] center” on the court.

Ideology may only factor into those rare cases that concern divisive issues, whether they be an abortion case before the Supreme Court or a lethal injection case in an Arkansas circuit court, but it’s those cases on which faith in the judiciary is increasingly staked. In those moments, Griffen believes people need to have faith in the judges who comprise the judiciary.

“One may have a viewpoint about a subject matter controversy without being partial to the litigants in a controversy.... That’s what our system turns on,” he says. “Trust is fundamental, and if we do not trust our processes, if we distrust our processes, we’re not going to trust the people.”

Correction: This story has been updated to correct where Griffen grew up.