The Fallacy of Fairness

By: Paul Davis

This Fall, the U.S. Supreme Court will decide whether to hear a challenge to certain provisions of Delaware’s Constitution. The challenged portions had set a limit on the number of justices affiliated with any one political party on the state’s three highest courts. [1] That party could form only “a bare majority,” while the remaining justices must belong to “the other political party.” [2] In Adams v. Governor of Delaware, the Third Circuit struck down this arrangement on First Amendment grounds, ruling that it violated the association rights of independents and other third parties who were barred from these seats. [3] Citing the ethical mandate of judges’ independence and distance from political activity, the court found that any interest in maintaining “political balance” could not justify these violations. [4]

Despite this outlook, the consideration of judges’ political stances as a job qualification continues to resurface. This year, Pete Buttigieg, Mayor of South Bend, Indiana and Democratic Presidential candidate, announced a proposal to restructure the Supreme Court to contain equal numbers of Democrat and Republican judges. [5] Beto O’Rourke expressed similar support for a plan which would rebalance the high court along partisan lines. [6] These ideas serve a major goal for Democrats this cycle – preventing a conservative takeover of the U.S. Supreme Court. According to the President’s Twitter, his administration fully intends to pursue that goal. [7]

Critics have noted how a partisan standard for judge selection raises both constitutional and logistical issues [8]. First, Buttigieg’s plan alters the appointment process enough to require a Constitutional amendment, which is unlikely to happen. [9] Further, both plans inevitably become mired in thorny details about how nominees will be identified as “Democrat judges” or “Republican judges.” [10] Finally, these approaches have yet to confront the problems with third-party representation brought up by the Third Circuit. These difficulties serve as reminders that the judiciary was intended to be distinct from the turbulent forces at play in our elections.

On the other hand, many describe the concept of judicial independence as pleasant-sounding fiction. Scholars support that, at least at the Supreme Court level, political identification and judges’ opinions reliably intersect. [11] In light of this data, realists claim the idea that judges’ holdings are wholly disconnected from their politics is naïve at best. Critics also point out that the U.S. Supreme Court has always been firmly entangled in political struggles, the increasingly-contentious approval process being one example. After all, Democrats’ rebalancing plans were likely motivated by the bitter partisan spectacle which cost Merrick Garland his chance for consideration. [12] Recent proposals signal an acknowledgement of the selection process as one more political battleground. In this case, one party seeks to respond to an unfair outcome.

Still, while “promoting ideological balance” is a goal that rings of fairness, that portrayal does not hold up under scrutiny. It is a logical leap highlighted by the Third Circuit as “conflating party balance with judicial impartiality.” [13] This kind of “fairness in the courts” really only works for the two parties at the table. Unsurprisingly, the Democratic Party’s vision of fairness roughly means power parity with Republicans, and vice-versa. [14] In the American context of two-party dominance, the binary view is presumed to be the sensible one.

Importantly, the original complaint in Adams was brought by a progressive voter who, after becoming disillusioned with his party, chose to register as an Independent. [15] His stance isn’t so strange for our era, the 2016 campaign featured reports of voters expressing frustration at a perceived lack of real choice or dissatisfaction with the two selections offered. [16] While these complaints reflect interest in a more diverse playing field, policy leaders double down on the traditional dichotomy. This is, of course, in the interest of fairness. Perfectly balanced, as all courts should be.

While realists maintain that the judiciary is already politicized, critics respond that this is no reason to enshrine partisan labels into law. As highlighted in recent decisions, this is especially inappropriate in the judicial context, which does not base its concept of fairness on the current state of Democrat/Republican power dynamics. Despite legitimate grievances raised from the aborted nomination process in 2016, policy leaders must soon reckon with the idea that “fair” and “balanced” are not always the same thing. As those leaders draw up blueprints for a balanced Supreme Court, the implicit fallacy looms heavily over these plans.

 

[1] Adams v. Governor of Delaware, 922 F.3d 166 (3d Cir. 2019)

[2] Id.

[3] Id.

[4] Id.

[5] Josh Lederman, Inside Pete Buttigieg’s plan to overhaul the Supreme Court, NBC News. (June 3, 2019), https://www.nbcnews.com/politics/2020-election/inside-pete-buttigieg-s-plan-overhaul-supreme-court-n101249.

[6] Id.

[7] Donald Trump (@realDonaldTrump), Twitter (March 28, 2018, 2:52 AM), https://twitter.com/realdonaldtrump/status/978932860307505153?lang=en.

[8] Lederman, supra note 5.

[9] Id.

[10] Id.

[11] Lee Epstein, et. al., The Behavior of Federal Judges, A Theoretical and Empirical Study of Rational Choice (2013). https://www.theguardian.com/us-news/2016/oct/25/american-political-parties-democrats-republicans-representation-survey

[12] Lederman, supra note 5.

[13] Adams v. Governor of Delaware, supra note 1.

[14] See Craig Jarvis and Anne Blythe, Veto override means voters will know judges’ party affiliations, The News & Observer. (March 23, 2017), https://www.newsobserver.com/news/politics-government/state-politics/article140327188.html.

[15] Adams v. Governor of Delaware, supra note 1.

[16] David Smith, Most Americans do not feel represented by Democrats or Republicans – survey, The Guardian. (October 25, 2016), https://www.theguardian.com/us-news/2016/oct/25/american-political-parties-democrats-republicans-representation-survey.

 

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