Religion & Law

I have been noticing an increasingly common move in journalistic and popular accounts of judicial decision-making.  A politically charged policy issues in a judicial decision either striking it down or upholding it.  Because it is politically charged, the decision garners the attention of the public.  Oftentimes the legal issues are complex, but members of the public, and certainly the media reporting on the decision, feel quite strongly about what the proper outcome ought to be.  When the writer disagrees with the outcome of the case, rather than attempting to engage with the substance of the decision -- or even try to make the issues digestible for the public -- the writer will instead focus on the judge's background -- her "biases."  That is why one always sees prominently in these kinds of accounts the political affiliation of the president who nominated the judge.  It is also why one sees, increasingly, an analysis of any possible personal conflicts -- no matter how remote -- that a judge might have that would tilt his or her mind.  In this way, the outcome can be explained -- understood by the public for what really motivates it.

In this column, Washington Post columnist Ruth Marcus begins by rightly criticizing the increasingly popular notion that a judge cannot be fair merely because he or she has developed the kinds of "political" contacts that got him or her nominated in the first place.  

Because I agree with that view, it was all the more disappointing to see Marcus breezily elide the issue of whether or not Judge Henry Hudson's views on the mandate were legally convincing (something she spends one sentence doing -- "I happen to believe that the individual mandate passes constitutional muster, but I also believe a credible argument can be made the other way") with the question of whether Judge Hudson is a "partisan hack[]" because he retains an ownership interest in a Republican consulting firm.  Marcus goes on to extend this claim to a judge's decision to address a political group: she says that Justice Scalia's decision to address a Republican group is "a terrible idea" because while addressing "ideological[ly]" oriented groups is ok, this is just one step too far. 

For myself, I don't see how making a speech to a group is analogous to having a financial interest in the outcome (which Judge Hudson did not have here), but let's set that aside.  The larger point is that if it's true that reasonable minds can disagree about the legal merits of the mandate (and I have no opinion about this issue, since I'm not sufficiently familiar with the legal arguments), then it's unfortunate to see Marcus using personal bias as a proxy for substantive criticism.  I've written on this page before about the use of recusal motions as weapons, and I expect the use of such motions to increase, just for this reason: it's so much easier to cast aspersions at a judge's integrity than to engage with complicated legal questions.  It is also a highly effective way of attacking the merits of a decision without actually addressing them.  I should add, should it be necessary, that it's no less objectionable to me when this kind of denigration happens to judges who are ideologically oriented left-ward.