Lack of Judicial Impartiality Threatens Rule of Law

Why do judges wear black robes? It’s a question few judges today seem to be asking themselves.

It certainly appears not to have troubled the mind of Chief Judge Roger Gregory of the Fourth Circuit Court of Appeals who, it seems, must instead be a student of Jorge Luis Borges. A couple of days ago, Judge Gregory, writing for the majority, upheld a lower court’s decision against President Trump’s revised Executive Order imposing a temporary travel ban from a handful of countries identified as hotbeds of terrorist activity. As Byron York points out, the decision broke 10 to 3 along partisan lines: the 10 judges who decided against the travel ban were appointed by Presidents Clinton or Obama, the 3 judges who supported the ban were appointed by one of the Bushes.

The rank partisanship on display is as disgusting as it is worrisome: a partisan judiciary is not a judicious judiciary. It is, on the contrary, a judiciary that dispenses its decisions based not on what you have done or left undone but on who you are. It is a government of men, not laws.

But the most extraordinary thing about the majority decision is not its partisanship but the personal nature of the opinion it expresses. It applies to Donald Trump and to Donald Trump only. As York notes,

The majority’s decision, as laid out by Gregory, suggests a mind-bending possibility: If the Trump executive order, every single word of it, were issued by another president who had not made such statements on the campaign trail, the court would find it constitutional.

This is where Borges comes in. In “Pierre Menard, Author of Don Quixote,” Borges celebrates the stupendous labor of a man who endeavored to produce a book that would be identical—”word for word and line for line”— to Cervantes’ great novel. Menard never managed more than a fragment. But Borges is surely right that though “the text of Cervantes and that of Menard are verbally identical,” the works are in fact very different. For one thing, what was written in the seventeenth century by a Catholic ex-soldier is of necessity very different from what was written in the twentieth century by a cosmopolitan, world-weary intellectual. Their different personal histories infuse their words with very different assumptions. Then there is the matter of style. “The archaic style of Menard . . . suffers from a certain affectation. Not so that of his precursor, who handles easily the ordinary Spanish of his time.” Borges spins an amusing and thought provoking epistemological tale with this fiction.

Until yesterday, I hadn’t appreciated its application to the workings of the judiciary. Judge Gregory enlightened me about that. In his opinion for the court, Judge Gregory charges that although the travel ban invokes national security, “in context” it “drips with religious intolerance, animus, and discrimination.”

Context, eh? What Judge Gregory means is that Donald Trump, or at least some people associated with Donald Trump’s Presidential campaign, said things about Muslims or other prospective immigrants with which Judge Gregory disagrees. Ergo anything that Donald Trump’s administration orders with respect to immigration is, ipso facto, tainted.

What Trump’s travel ban actually said is unexceptionable. Nor can any candid person doubt the President’s authority to intervene dispositively on who may and who may not enter the United States. The law is unambiguous:

Whenever the President finds that the entry of any aliens or of any class of aliens into the United States would be detrimental to the interests of the United States, he may by proclamation, and for such period as he shall deem necessary, suspend the entry of all aliens or any class of aliens as immigrants or nonimmigrants, or impose on the entry of aliens any restrictions he may deem to be appropriate.

The majority opinion of the Fourth Circuit makes explicit what was already implicit in the lower court interventions against the administration’s efforts to “improve the screening and vetting protocols” in order to “protect the nation from foreign terrorist entry into the United States.” At issue is not the Constitutionality of the Executive Order but the person of Donald Trump. The effect of the ruling, as Andrew McCarthy observes, is to empower “both radical Islam and judicial imperialism.” In the immediate aftermath of yet another bloody jihadist attack—this one in Manchester, England—it is natural that we think mostly about the former, about the way the Fourth Circuit’s ruling makes us less safe by empowering radical Islam. Should we suffer another Orlando or San Berardino here, we can lay at least part of the blame at the doorstep of judges like Roger Gregory.

align=”left” The harm such judicial supremacists do goes far beyond their particular rulings. It erodes the one thing that guarantees the place of the judiciary in a free society: widespread trust in the legitimacy, which is to say, the impartiality of its operation.

But although terrorism is certainly a legitimate and a pressing concern, in some ways it is McCarthy’s second item, the empowering of judicial imperialism or judicial supremacy, that is the bigger long-term concern. For what these recent decisions portend—the temporary restraining orders issued by left-leaning, blue-state District Judges as well as the Fourth Circuit’s en banc ruling—is an attack on the Constitutional separation of powers via an assertion of judicial triumphalism. And this brings me to my opening question: Why do judges wear fancy black robes? Former Associate Justice Sandra Day O’Connor, pondering that question, suggested that the attire “shows that all of us judges are engaged in upholding the Constitution and the rule of law. We have a common responsibility.”

I think that’s about right. The somber black robes attest to the impartial majesty of the law.

But what happens if those wearing the robes betray that trust, that “common responsibility” to uphold the Constitution and the rule of law? Alexander Hamilton famously, and perhaps naively, described the judiciary as “the least dangerous branch,” reasoning that since the Court commanded neither money (as did Congress) nor the army (as did the Executive), therefore the Court would have to rely not on coercive power but merely the impressive spectacle of what Hamilton called “judgment.”

We’ve had plenty of experience to show us how drastically Hamilton underestimated the threat of an unfettered judiciary. It is worth reminding ourselves that several of his contemporaries were not so starry eyed about the Court. One of the anti-Federalists, for example, warned that the Constitution did not provide an effective mechanism for reining in judicial arrogance.

There is no power above them, to control any of their decisions. There is no authority that can remove them, and they cannot be controlled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.

That, I submit, is pretty much where we are with judges like Roger Gregory. The harm such judicial supremacists do goes far beyond their particular rulings. It erodes the one thing that guarantees the place of the judiciary in a free society: widespread trust in the legitimacy, which is to say, the impartiality of its operation. The black robes are a symbol of that trust and the majesty that imbues it. The Fourth Circuit has just violated that trust in the most brutal and cavalier fashion, threatening to transform those somber black robes from an emblem of high office into costume worn by impersonators.

To this extent, Hamilton was right: in our society the respect of the judiciary depends not on its deployment of coercion but prestige. As Glenn Reynolds observed in commenting on this deeply misguided ruling by the Fourth Circuit, “The judiciary’s prestige-well is going to dry up pretty fast at this rate.” And then?

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