Judges’ allegiance is to the law, not personalities or causes

How do we know if a government official is doing a good job? If the economy is struggling, does that tell us the president has done a bad job? If the legislature does not pass many bills, is it failing?

What about judges? How do we know if they are doing what they are supposed to? There are some strong opinions on this point.

The president, for instance, seems to have pretty clear criteria. In a series of social media posts, with the eclectic capitalization and awkward neologisms that seem to characterize that form of communication, President Trump has proposed a simple measure: do the justices support his position? The good judges approve tariffs and restrictions on mail-in voting; bad judges do not.

There is another extreme position that is the mirror image of the first.

Some Democratic politicians are calling the Supreme Court corrupt and political because sometimes the justices rule in favor of the positions President Trump favors, or because the Court does not support the interpretations they favor.

Can it really be so simple? Can we assess whether the justices are doing their job based on which sides’ policy positions the Court’s decisions seem to support?

That can’t be right, of course. Careful observers recognize that the justices do not approach their responsibility in a political or partisan way. On a Defending Ideas podcast, Sarah Isgur, the editor of SCOTUSblog, effectively rebutted this claim. She is in good company; Justice Elena Kagan has made the same point.

If judges can’t be assessed on purely political terms, what are they supposed to do?

Most simply, they are to apply the law to specific disputes, what the Constitution calls “cases” and “controversies.” This excludes any policymaking role for the courts.

In applying the laws created by the people (in constitutions) or the legislature (in statutes) to a particular case, the justices are to make their best effort to determine the meaning of those laws. They do this by looking at the language that was adopted. Sometimes this is simple, and other times, it requires great effort. For instance, a legal phrase may convey a specific meaning when it was enacted, while the same term might have a different meaning in current usage. It is not surprising then that even conscientious judges can come to different conclusions about a particular application of the president’s power to impose tariffs or the meaning of the Voting Rights Act.

An effective judge makes a good-faith effort to apply that principle faithfully and then explains the conclusion clearly so that other judges can make correct decisions in future cases. When judges fail to do this, their decisions distort the law and those opinions will need to be abandoned and corrected in subsequent decisions.

The good news is that even when good judges make mistakes, correction is possible.

What’s missing in all of this is politics. Given the responsibility of judges, they will disregard political or policy considerations.

Assessing judicial performance starts with a correct understanding of the judge’s role. When they do their job right, their decisions will reflect existing law rather than partisanship. We are very fortunate that the current U.S. Supreme Court is largely committed to this approach to their responsibility.