Outlook: Judging the Judges

The response to the rulings in the Schiavo case -- following close after the murders of a state judge in Atlanta and a federal judge's family in Chicago -- has put not only judicial opinions but judges themselves suddenly under the spotlight. Florida judge George W. Greer has been was vilified, picketed, bombarded with harassing letters and e-mails, and even threatened with death by people who disagree with his rulings in the highly charged Schiavo case. This new personalization of the judiciary poses grave threats to the idea of judicial independence, says Jeffrey Rosen, a professor of law at George Washington, in Sunday's Outlook section.

Rosen was online on Monday, March 28, at 11 a.m. ET to answer readers' questions and discuss his article, It's the Law, Not the Judge.

Editor's Note: Washingtonpost.com moderators retain editorial control over Live Online discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions.

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Oregon: Given the polls and the unprecedented attention to this case, do you anticipate one of the results of the Schiavo case is that it may actually undermine the Bush administration's efforts to place more conservative judges on the bench?

Jeffrey Rosen: The Schiavo case helps to dramatize the gap between the views of a majority of the country on questions involving the right to die and the views of the religious and social conservative base of the Republican party. Nevertheless, I'm not sure that the case will influence judicial nominations: the Senate seems to be on the verge of blowing itself up by eliminating the fillibuster, because the same conservative groups have exagerated the stakes in judicial nominations and liberal groups have responded in kind. This was the odd dynamic I tried to explore in the piece -- the fact that judges generally reflect the wishes of a majority of the country, but interest groups on both sides of the political spectrum are trying to use the judiciary to win political victories that elude them in the legislatures.

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Ashland, Mo.: It would be easier to sympathize with your views if the Supreme Court did not consistently usurp the legislative functions. By constitutionalizing too many areas of the law, the Court essentially invites extreme reactions as there is no easy method to correct the Court's incorrect pronouncements. As even Justice Ginsburg has noted, without Roe, the abortion issue would probably have been much more muted by now as legislative bodies worked out some accomodation. There are even reports that there are fewer abortion providers now than at the time Roe was decided.

Lawrence is another example of Supreme Court overreaching resulting in the various state referenda and the threatened federal constitutional amendment. Earlier examples include Dred Scott and Furman, from which the Court retreated in Gregg.

Should the public take seriously a Court that thinks nude dancing is a free speech issue and that how you arrange a Christmas display determines if there is a first amendment violation?

Their socio-economic status defines the justices as elitists who rarely understand the implications of their rulings, particularly when the Court does not have to suffer the consequences of those rulings.

Jeffrey Rosen: Thanks for this good challenge. I agree with you and Justice Ginsburg that Roe v. Wade was bad for liberals; and that if the Court hadn't jumped in, legislatures would have liberalized abortion laws on their own. And it's true that this Court is, as a recent book by Thomas Keck suggests, "The Most Activist in History" judged by the number of federal and state laws that it has struck down. (The most activist justices are O'Connor and Kennedy, who like to strike down federal *and* state laws.) Nevertheless, the Court hasn't, by and large, provoked extreme reactions from Congress because, in most cases, its decisions reflect the views of a majority of the country. What makes the Schiavo case so interesting, as the previous question suggests, is that lower courts were following the constituitonal views of a majority of the country, but Congress reacted anyway because it was more concerned about the views of the Republican base. Perhaps we're seeing a new form of blacklash here, driven by the views of minorities rather than majorities. It will be interesting to see if this is the beginning of a trend.

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Columbus, Ohio: When, if ever, should the judges offer their personal thoughts as a part of their decsions? That is, should a judge offer expressions of sympathy or commend patries or their counsel about their conduct, particularly their extrajudicial conduct? Or, if accurate, tell the lawyers and parties that it's time to stop...

Jeffrey Rosen: In that tragic case of the Chicago judge whose family was murdered, she had tried to express her personal sympathy with the disappointed litigant, and her frustration that the law didn't permit her to help him. That didn't stop him from killing her husband and mother. In lower courts, especially, a bit of candor about the judge's own views may help to illuminate a decision to follow the law, but it's clearly no panacea against the truly disturbed.

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Greenbelt, Md.: The courts are, at this point, the last remaining Federal institution standing against theocracy in this country. I join the vast majority of Americans who fear for the future.

Wasn't this case just cynically trumped up in order to create a wedge issue like breasts at the Super Bowl or backwards masking on records? Is that not why Congress grandstanded on it, and why the judiciary is being so vilified? "Tort reform" never caught on, so this must be the next salvo, I think.

Jeffrey Rosen: An interesting thought; but I wonder. If the polls about Schiavo and even prayer and abortion are accurate, then social conservatives have lost in their efforts to convince a majority of the country to share their views. That's why they're turning to the courts -- for victories they're unable to win politically. But that suggests that if the Courts generally took a backseat and deferred to legislatures, then we wouldn't see theocracy because the votes just aren't there to impose it, when push comes to shove. It's only because the Bush administration knows that social conservatives can't pass bans on early term abortions that it's willing to pay rhetorical lip service to them -- repeaing political benefits of appealling to the base without the costs of alienating the majority. My general view is that national majorities tend to be fairly libertarian and egalitarian, so liberals and libertarian minded people really don't need the courts to save them from theocracy. But I see the arguments on the other side.

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Monroe, N.Y.: Dear Mr. Rosen,
Is there any precedent in the U.S. for this sort of pressure on judges? Is our society reviving old battles with the legal system, much like creationists wish to battle science again after 90 years?

Thank you.

Jeffrey Rosen: My understanding is that there is no precedent for a Congressional attempt to change the jurisdiction in a particular case involving the right to die -- directing a federal courts to re-examine the findings of a state court. Nevertheless, there are lots of precedents for Congress stripping the courts of jurisdiction in the middle of cases in order to cherry-pick the results. The most famous example, one that always surprised me in law school, was Congress's decision in 1869, in the McCardle case, to strip the Supreme Court of jurisdiction to hear cases involving the suspension of habeas corpus -- the Court accepted this assault on its authority, as it generally has done in the face of determined congressional opposition.

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Bethesda, Md.: The claim that religous right makes is that there are activist judges out there making these policy-liberal descisions. I just do not see it in Schiavo case. Under the law, Michael Schiavo has legal custody of his wife, not her parents.

Jeffrey Rosen: Judicial activism has become such an elastic term that it's essentially meaningless. Conservatives and liberals both call "activist" the decisions they don't like and praise as "restrained" the ones they do. The incoherence of the term is especially obvious in the new conservative best seller, Men in Black, which attacks as activist the Supreme Court's decision to strike down abortion laws and its decisions *not* to strike down affirmative action and campaign finance reform.

I prefer an entirely neutral definition of activism: a judge is activist whenever he or she strikes down a federal or state law. This definition doesn't make a judgment about whether or not a particular activist decision is justified; it's purely descriptive. Armed with this neutral definition, it's clear that both conservative and liberal interest groups are enthusiastic supporters of judicial activism, and neither side is willing to allow the most controversial political issues to be decided in legislatures.

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St. Paul, Minn.: Hasn't everyone lost sight of the fact that judges are supposed to be making decisions based on the law, not based on their own personal views? That seems to be why politicians and the public personally attack judges whose decisions they don't like without regard to the legal basis for those decisions.

Jeffrey Rosen: Of course judges are supposed to make decisions based on the law, and not their personal views. But in most hotly contested cases involving the culture wars, the law is malleable, and the answers aren't clear. In the Schiavo case, however, the law was indeed clear -- so much so that nearly every federal and state court to review the case came to the same conclusion. In cases like this, it appears that politicians who attacked Judge Greer for imposing his personal views were attempting to impose their own. And it's heartening that federal and state judges at every level, up to the Supreme Court, reached the same legal conclusions.

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Anonymous: I believe the judges are right in this case but how do we make it less dangerous to those facing end of life decisions and keep Congress out of the loop?

Jeffrey Rosen: A good question, and a hard one. As this morning's newspapers make clear, there are a series of bills pending in Congress, some of which would attempt to federalize end of life decisions by creating presumptions in favor of life without overwhelming evidence to the contrary. In my view federalizing the issue would be a bad idea -- I agree with conservatives who (used to) argue that decisions involving marriage & family, life and death, are best left to the states, which can legitimately reach different conclusions. The Oregon right to die initiative is a good example of how the states can serve as what Justice Brandeis called laboratories of democracy -- on any issue where Americans legitimately disagree, it's best decide things at the state rather than national level. Whether Republicans can be persuaded to remember their devotion to federalism in the days ahead remains to be seen.

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Milltown, N.J.: Hasn't the judiciary sown the discontent in creating rights such as the right to an abortion which isn't provided for in the Constitution? They've got no one to blame but themselves because they have injected themselves in the culture wars.

Jeffrey Rosen: I tend to agree with you that Roe was very bad for the judiciary. It was the reaction to Roe, as you said, that invigorated conservative interest groups and led to overconfidence on the part of liberal interest groups. Roe has cast a shadow over our judicial politics for the past thirty years. And, along with the Washington Post's Ben Wittes, I agree that overturning Roe would be the best thing that could happen to liberals, because it would expose the basic weakness of the pro-life position in the country at large: since 1974, majorities of Americans have opposed restrictions on early term abortions and supported restrictions on late term abortions. Roe is an important cautionary tale about how the judiciary, when it attempts to thwart the determined wishes of a national majority (by forbidding restrictions on late term abortions) may be responsible for a self-inflicted wound.

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New York, N.Y.: I agree with you that conservative politican bring select cases before the courts because they know they will lose. However, I find the most disturbing listening to Republicans assault the judges in the Shiavo case and make this a reason to change the role of our judiciary. It is the assult on 200 years of consensus on the role of the judiciary that is most troubling since it negates the same very constitution that they profess so fondly to love and uphold. Do you see a way back to some civility that treats our judiciary with the historical respect it deserves?

Jeffrey Rosen: I share your concern about the intemperance of attacks on the judiciary. Of course, there's nothing new about vitriolic judge-bashing: Thomas Jefferson called the judiciary a "subtle corps of sappers and miners"; and politically motivated impeachments were common at the framing. What I think has changed is that attacks now come from interest groups at both sides of the political spectrum, even as the country as a whole remains ambivalent about judges. How can civility be restored? Not sure there's an easy way out of this one, short of revealling the interest groups to be the paper tigers that they are. This would require some kind of national backlash against the Senate for its assault on judicial independence -- one that seems unlikely to materialize. But perhaps the elimination of the fillibuster will change the political dynamic, and reveal the Senate's self-destructive intemperance for what it is ...

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Paris, France: This entire question of judicial review and constitutionalism sounds a lot like the themes from Bruce Ackerman's 1991 work "We the People." Having recently gone through the crises of the past five years, would you aggree with Ackerman's thesis that the Federal and Supreme Courts are simply trying to synthesize the founding constitutional priniciples with the current political climate? Or, is there something more going on here? Thanks.

Jeffrey Rosen: Bonjour, Paris! An Ackerman fan in France does my heart proud. Ackerman was one of my favorite teachers in law school, and I think there is much to his thesis about constitutional synthesis. Of course, with re-election of President Bush and the Republican Congress pose a challenge to his theory: it's arguable that the recent election returns do represent a repudiation of the New Deal principles that Ackerman believes was the last "constitutional moment." Nevertheless, I don't see the Supreme Court or federal courts actively strikely at the core of the post New Deal regulatory state, at least not yet -- since 1995, they've been chipping away at the margins. There is a political movement today that wants to resurrect what they call the "Constitution in Exile" and strike at the heart of the post New Deal regulatory state. (As it happens, I'm now writing about piece about them.) But the Court's won't accept their invitation, in the sense that Ackerman describes, unless Republicans win some more Presidential and Congressional elections -- these things take a long time to materialize. Thanks again, and enjoy la belle France!

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Fairfax, Va.: It seems we hear far less criticism of judicial activism in the criminal law realm. When it comes to civil matters, politicians scream that juries and judges are out of control. Why do you think that is?

Jeffrey Rosen: An interesting observation. Perhaps the reason is that criminals, in general, have less of a political constituency, so when they're convicted (as they generally are), there's no national reaction. Nevertheless, criminal decisions sometimes do provoke backlashes -- most notably, the criminal law decisions of the late Warren Court, such as Miranda, Mapp, and Escobedo, which Congress tried to overturn. The Supreme Court, however, refused to bow to Congress's will, and in reaffirming Miranda in 2000, Chief Justice Rehnquist said it had become "accepted by the culture." The other obvious backlash in the criminal arena is the death penalty: after the Court attempted to outlaw it in the 1970s, states passed new death penalty laws with a vengeance, and the Court retreated. All this confirms your insight and suggests that, in the long run, national majorities have been fairly content with the Court's criminal decisions, and in the cases where there has been serious discontent, the Court, rather than the country, has yielded.

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Black River, N.Y.: A disrespect of judicial decisions comes as no surprize due to access to government by corporate interests, that have brought about a "our government is for sale by the higest bidder." If you don't like/condone the present state of government contribute on a gross scale that gives you more than phone priviledges.

As a law student, I perceive a lack of understanding by the general public as to the actual workings of our judical system. From local justice courts, up through state appellate and beyond.

The expression, exposure leads to composure may be trite, but public education may be "one" answer.

Jeffrey Rosen: A provocative challenge; but I wonder. The claim that corporate interests routinely buy judicial decisions doesn't seem to me supported by the evidence: we don't have a system of telephone justice, for example, where the government or a rich corporation can simply call up a judge and tell him how to vote. Corporate interests do have a distinctive constituitonal vision, of course; but as the so far mixed success of the "Constitution in Exile" movement suggests, there is not a huge judicial constituency for striking down the post New Deal regulatory state root and branch. Nevertheless, I agree with you that public education is the best way of helping the public make informed decisions about our judicial system. So here's to online chats!

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Laurel, Md.: I know conservatives today like to date their objections to judicial activism to Roe; but didn't it really start with Brown v. Board a couple of decades earlier? "The Warren Court" was a euphamism for opposing civil rights, just like "states rights" was and is.

Isn't Roe just a convenient substitute for a much less savory view of opposing "judicial activism?"

Jeffrey Rosen: Brown, actually, was popular with a narrow majority of the country when it was handed down. (Michael Klarman's superb new book, From Jim Crow to Civil Rights traces this story in convincing detail.) The opponents of Brown -- mostly Southern segregationists -- weren't able to get any traction for their complaints about judicial activism until the Supreme Court decisions in the late 50s striking down McCarthy era security programs -- at that point, they joined forces with national security conservatives and started the impeach Earl Warren campaign. But unlike Roe, Brown was not a counter-majoritarian decision when it came down.

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Alexandria, Va.: Do you see this trend toward a more activist juduciary system as a natural extension of a society with more special interests and more players willing to use whatever means necessary to advance their personal/political/professional agenda? Don't you think this is the inevitable direction we are driving our country (and therefore those in the judiciary system) because there always seems to be a reason to appeal, or a technicality that makes a decision non-binding. We're asking someone else how to live our lives because of our inability as a society to either accept responsibility or a judicial verdict. Can anyone really claim to be surprised?

Jeffrey Rosen: I think this is a powerful point. There's something about the lack of respect for authority in this increasingly democratic culture that leads litigants to refuse to accept a final defeat with good grace. This is a general challenge for politicial institutions in a post Watergate era, but it's especially challenging for judges who have, as Hamilton said, neither purse nor sword, and depend on public respect above all. As you suggest, it's an especially dangerous situation when society turns to judges to resolve the most hotly contested political questions that politicians don't want to take responsibility for resolving, but then disappointed litigants refuse to accept verdicts with which they disagree. At some point, there's no further appeal, which seems to be where we are the moment in the Schiavo case.

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Dallas, Tex.: Does the Supreme Court's decision not to hear the Schiavo case make their decision to interfere in Florida's election process in the 2000 Presidential election even more noteworthy?

Jeffrey Rosen: The contrast is interesting, isn't it, and not only because both cases arose out of Florida. I agree with you (I think) that that Bush v. Gore was ill advised because it was a self-defeating attempt by the court to save the country from a hotly contested political dispute. In Schiavo, Justice Kennedy (who wrote the Bush v. Gore per curiam opinion) seemed, at least for the moment, to have learned his lesson.

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Northern Virginia: It sounds like there was an unspoken social compact to respect the judiciary as applying the laws of the land without fear or favor. Now that compact is broken and judges are attacked (at least in partisan speeches) for doing their job. This seems undesirable for all of us.

How do we fix this? Ask the media to stop identifying who appointed every judge, which makes them seem political rather than objective? Change how judges are appointed? Shame the parties in some way? Any other remedies?

We can't let this happen to good people doing useful work we all rely on.

Jeffrey Rosen: These excesses of judge-bashing are indeed bad for all of us -- the American judiciary is one of its most successful institutions of democracy; but its continued success depends on continued public acceptance. So we shouldn't underestimate the stakes of playing with fire. As to what can be done, that's of course a much harder question. In light of our First Amendment, obviously no law could or should forbid journalists from identifying judges political affiliation. But some sensitivity to the difference between judges and politicians (which the best journalists always display) might help. Public shaming of the parties for their pandering to interest groups sounds like a great idea to me, and that was one of the points of the piece. But the best thing judges can do to help themselves, I think, is to stay off the morning talk shows!

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Anonymous: The Law can at times be open to interpretation. I've seen congressmen spend an hour arguing over the usage of "what" in a bill on C-span.

But Judges mostly try to follow the law as written. One of the arguments used by those who disagree with a judicial ruling is that the judge is going against the will of the people. But they completely ignore that the laws are written by the representatives of the people.

Take the Terry Schiavo case. The judges ruling conforms with the laws of Florida as developed by their duly elected representatives. The state of Florida has had seven years to change the laws but they haven't. Those that attack the judges in this case completely ignore the fact that this is the law as the duly elected legislature has written it.

This disconnect by those who deride judges baffles me and I was wondering if you could lend any insight.

Jeffrey Rosen: I agree with your sense of bafflement. Most judges do indeed try to follow the law in good conscience, and most judicial decisions inspire little controversy. Moreoever, even in controversial cases, judges tend to reflect the views of national majorities. The gap between judicial performance, which tends to be admirable, and the implausible attack on judges as anti-democratic elitists must have more to do with interest group politics than anything else.

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Ann Arbor, Mich.: Professor Rosen:

Certain states elect judges like any other politician. Do you think this contributes to looking at even non-elected judges as politicians?

Jeffrey Rosen: An interesting question; and it would be good to see polls on the different perception of state and federal judges. But the fact that Congress attacked the federal judges in the Schiavo case as violently as the state judges suggests that politicians are most concerned, alas, about the bottom line.

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Jeffrey Rosen: It's now 11, and as Jane Austin said, I've delighted you long enough. Many thanks to all for excellent questions and a very interesting discussion.

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