Judicial independence: The new threat from within

By Judge Steve Leben and Judge Kevin S. Burke

Judge Steve Leben

In election years, judges frequently come under attack for a specific decision. And since judges generally can’t comment publicly about pending cases beyond what was said in the decision itself, judges can be an easy target.

But something strange is happening as the 2012 presidential campaign comes into focus: In two high-profile court hearings, judges have struck what seems to be a partisan tone, unnecessarily inserting themselves into the campaign. Their actions from inside the judiciary threaten judicial independence just as much as attacks from the outside.

The first was U.S. Supreme Court Justice Antonin Scalia. During oral argument about whether the Affordable Care Act is unconstitutionally coercive on the states, he asked whether there was “any chance that all 26 states opposing it have Republican governors, and all of the states supporting it have Democratic governors?” When told there was “a correlation,” Justice Scalia triumphantly said, “Yes!” followed by laughter from the audience. Scalia got his laugh line — transcripts show he gets more laughs than any other justice. But here he did so by inserting a comment about purely partisan matters that had no legal relationship to the argument being made.

Use of ‘kickback’ phrase

Judge Kevin S. Burke

Justice Scalia later made reference to “the Cornhusker kickback” in asking a question about whether the entire healthcare law must be struck down if one part is found invalid. Using the term “kickback” in reference to a provision that purportedly gave federal benefits to a state (Nebraska) in exchange for its senator’s vote sounded more like a political attack ad than the sort of question a neutral judge would ask. This too was an unnecessary comment: The provision he referenced hadn’t ultimately taken effect and thus wasn’t part of the statute before the court. The full article appears today in MinnPost which can be found at:

http://www.minnpost.com/community-voices/2012/05/judicial-independence-new-threat-within. The Commentary originally appeared in Judicature which is the publication of the American Judicature Society.

The Associated Press has this report on the new construction project.   A related news release that the Public Information Office of the U.S. Supreme Court issued today can be accessed here. But the real repair focus for the United States Supreme Court might just be how to repair the Court’s relationship with the public. Only 52 percent of the American public has a favorable opinion of the court, down from 64 percent three years ago, and a high of 80 percent favorability in 1994; Pew reported that public assessments of the Supreme Court have reached a quarter-century low. Unlike evaluations over much of the past decade, there is very little partisan divide. The Court receives relatively low favorable ratings from Republicans, Democrats, and independents alike. There are virtually no partisan differences in views of the Supreme Court: 56% of Republicans and 52% of both Democrats and independents rate the Supreme Court favorably. And the decline in court ratings has occurred across party lines over the past three years. In April 2009, soon after Barack Obama took office, 70% of Republicans, 63% of Democrats, and 64% of independents held a favorable opinion of the Court.

Republican ratings fell steeply between 2009 and 2010, with the appointments of Sonia Sotomayor and Elena Kagan to the court. Democratic ratings remained relatively high through 2010 but have fallen steeply since.

The weak ratings for the Court across party lines stand in contrast to most previous polls, in which those in the president’s party have viewed the Supreme Court more favorably than those in the opposite party. Most recently, throughout George W. Bush’s administration, Republicans felt much more favorably toward the Supreme Court than did Democrats. In July 2007, 73% of Republicans rated the Court favorably, compared with 49% of Democrats. This divide began even before Bush took office, triggered by the Supreme Court’s Bush v. Gore ruling. In early January 2001, 80% of Republicans viewed the court favorably, compared with 62% of Democrats. For the full report see:

http://www.people-press.org/2012/05/01/supreme-court-favorability-reaches-new-low/?src=prc-headline