The Supreme Court: Can the Justices' remain impartial?

Jun 29, 2012

The Supreme Court announced its decision Wednesday to uphold the individual mandate in the health care law. The ruling declares that the individual mandate, which requires most Americans to buy health insurance or pay a fine, is constitutional as a tax.

Perhaps even more interesting, the conservative Chief Justice John G. Roberts Jr. joined the liberal wing of the Supreme Court to save the heart of President Obama?s landmark health-care law.

Looking beyond whether or not the decision was the correct one, another question emerges: Does legal objectivity exist?

Can Supreme Court justices remain impartial, especially when their political leanings are publicly known? What happens when a Justice speaks about an opinion on a topic outside the court that relates to a ongoing case? What ethical obligations they have to remain impartial?

Brad Hirschfield live chatted with readers Friday at 11 a.m. ET about these questions and more.

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SCOTUS has ruled, but based upon what?  Was this a wonderful example of judicial objectivity or politcs as usual?  What do you think?


Is objectivity even possible?  Can anyone read anything "purely objectively", or are these issues simply raised when the court does something disagreeable to the one raising the question?


Let's go!

The real question is why these nine justices are such power hungry people that they don't ever leave at a reasonable age. Some of these justices are so old (both sides of the political spectrum) that one day someone with the early stages of Alzheimers will be going off the rails and not realize it themselves. (Again, there are enough of them in their 70s that this has nothing to do with politics, it is about competency.)

That's the "real question"?  Really?  And what, would you suggest as the "reasonable age" for mandatory retirement?


Rather than an artificial age-based argument, why not go with an evidence-based one instead?  Do you see any indication of a Justice who remained on the court passed the time at which they had the intellectual vitality to serve?  THAT, and only that, should be the limiting issue in a Jutice's tenure.  And that, along with their lifetime appointment to the court, is what helps to lift the court's decision making processes above the fray of day to day politics.

Legal objectivity does exist. Chief Justice Roberts has said since his confirmation hearings that the court's job is to determine constitutionality, nothing more, nothing less. As he said yesterday, their job isn't to relieve people of their political decisions. Basically, if you don't like the ACA, that's on Congress, not SCOTUS. Scalia's dissent to the immigration ruling was inappropriate, whether you agree with what he said or not - his thoughts had nothing to do with the Constitutionality of the law.

You make a bold claim, but fail to back it up.  Your summary of CJ Roberts however, is spot on.  Unfortunately, his self-described role as "an umpire", not a player in the making of law and policy, does not assure objectivity.  It does however help to hold in check the personal biases that are part of all people's intellectual processes.


Scalia was simply being Scalia, and it's not at all clear that his harsh ranting and comments regarding the future were actually the basis for his ruling re immigration.  What he demonstrated though, was that from both the left and the right, no matter how strenuously the latter may claim otherwise, personal perspective is always present when one interprets the law -- or anything else for that matter.  The trick lies in being as self-aware as posible and continuously asking one's self, if one happens to be a member of SCOTUS, are they playing the game or serving as the umpire.  Whatever one thinks about ACA/Obamacare, CJ Roberts did a magnificent job of that in his ruling, and deserves great praise for having done so.

Concerning impartiality: Should the Catholic lawsuit concerning employers' and contraception reach the Supreme Court, would Justice Scalia have to recuse himself because he has a son who is a priest in the Catholic Diocese of Arlington?

Of course not, especially as neither you nor anyone else knows how his son feels about the issue.  Would you want  him to recuse himself if you knew that his son supported the President and found the new policy to be appropriate not just for the country, but for the Catholic Church?  I am guessing not.


Discussions of who should recuse themselves, like most assessments of what the Court is or should be doing, are typically more about how to get the Court to do what the speakers would like policy to be, not what the law actually requires or allows.  In truth, most people should recuse themselves from discussing the law until they can distinguish between it and discussions of policy advocacy.

Clarence Thomas's wife, Virginia Thomas, founded a conservative advocacy group, Liberty Central, that made doing away with the Affordable Care Act one of its primary missions. Despite his wife making money lobbying for a particular decision on a case going before the Court, Thomas refused to recuse himself. It is hard to maintain a fiction of impartiality when you or your family are directly involved in monetizing a case.

That was his wife, not him.  I am curious, how would you feel about a Justice who argued for a law when she was Solicitor General, and then heard a case on same when she was later sitting on the Court?  That is what Justice Kagan did, but my guess, since you only asked about one of them, is that you are perfectly fine with the latter, and are fine with it because you happen to agree with here conclusion regarding the policy in question. 


You are correct that impartiality is a fiction, if by impartiality you mean that judges should be able to disassociate all past personal, intellectual and psychological experience -- acting as legal machines.  But if by impartiality one means the ability to strive for decisions which are reached by appeal to the law itself, and not specific outcomes which the decisor longs to see, then not only is imparitality not a fiction, SCOTUS typicially does a very good job.

Maybe this is a more philosophical question, but even if legal objectivity exists, would we be able to recognize it? In other words, we view legal decisions through the lense of our own biases, which makes it much more difficult to determine objectivity, at least (or especially) for those of us in the non-legal world. I submit that it is actually easier to recognize what is NOT objective (like Scalia's dissent on the immigration case, for instance). Perhaps then, uncertainty would be our guide. As in, the more uncertain about the political bent of a legal ruling, the more objective it probably is. Anyway, just rambling speculation on my part. Thanks for taking my comments!

You appreciate the impossiblity of the kind objectivity which too many people long for, both for court members and for the rest of us.  You also accept that good decision making is about managing uncertainty and structuring ambiguity, not getting rid of them.  That is a wise view and more than worthy of sharing with our readers.  Thanks!

There are many different interpretations of the Constitution - it's not cut and dry by any stretch of the imagination.  The Justices make their judgements based on how they interpret the constitution - how could they not? Therefore, I don't really think it's possible to be "unbiased."  Liberals and conservatives differ because they interpret the laws differently.  They have different ideologies and perspectives.  So no matter what the Justices decide, it can be challenged.  Don't you think?

I think that you are largely correct.  In fact, the maleability and interpretability of the Constitution are central facets of durable value as our nation's guiding document.  No cut and dry text -- one which could only and always mean only one thing -- could survive and remain meaningful for centuries, at least not within a healthy and vibrant society.

I saw reports that Chief Justice John G. Roberts only sided with the majority to protect the images of the Supreme Court. If that is true, I feel he failed to do his job. His job is NOT to protect his image or the image of the courts, it is to determine the constitutionality of the issues being presented. His job, and the job of all of the justices, is to make the tough calls, even if they are unpopular.

I have seen "reports" that the sky is falling, that the Mafia arranged the asassination of JFK, and that the United States govenment was behind the attacks of 9/11, but that doesn't make any of them true.  So before you cast judgement on the CJ based on reports which are backed up with no evidence, take a breath and ask yourself if you, in light of your definiton of the Court's task, should not be especially happy today.


Look at what happened!  A self-declared legal conservative sided with the liberals because as a matter of law, not policy, he thought it was the correct thing to do.  Whether you agree with Roberts or not, he made exactly the kind of tough call, especially from his perspective, that you want to see.

I'm trying to figure out Roberts opinion on this whole thing. It seems to me that he basically said, "It's not Constitutional... but it is...And then while the government can't mandate commerce they can tax your pants off if you don't." I was under the impression it's not the SCOTUS job to find loopholes for things. Obamma said it wasn't a tax. He flat out said ad nauseum how it wasn't a tax. Yet the court now say's "It's ok - this is just a tax"

There is plenty of fodder her to use against the President, if that is your want, but Roberts did his job, and he actually did it in the rather conservative legal style for which he is known.  The real story here is that tons of plotical conservatives are stunned to discover that being a politcal conservative and a legal conservative are not one and the same.  On top of that, those same people discovered that solid legal conservatism is not simply a tool for achieving a set of "large C", conservative poliitcal policies, whether they are good for the country or not.

I teach sociology. What "No Such Thing" described is the social constructionist stance to social reality. Yet about half of the Court disputes that, and argues for a "strict interpretation" of law, that there is only one meaning -- what the founders "meant." How do we reconcile these?

You are over-reducing bot hthe  contextual or social reality approach to reading and the author or original intent approach.  There is actually room for them to coexist in a coherent and sophisitcated way, especially when  it comes to reading the law because the intent approach still demands application to new contexts.


Ironically, to the extent that any of that tension was related to the healthcare decision, it left us with a legal conservative confounding politcal conservatives because of his application of the law, not his deisre to manufacture a policy.

...I'd say yes, judicial impartiality is entirely possible (and more common than most people credit). I don't think impartiality is at the basis of most complaints about the Court, but rather complaints about 'the other guy's' legal philosophy and interpretation of the Constitution (eg. Orginialism v. Textualism v. "living Constitution"). Most of the results I read from the Court flow naturally from the Justices' stated philosophies. Most complaints I hear about the Justices' integrity are really complaints about their judicial philosophy in disguise. And of course, some people don't believe that anyone could honestly and with integrity disagree with their chosen judicial philosophy. Which I always thought reflected poorly on the speaker, rather than the Justice.

Not only an attorney, but a wise one, and one who speaks to issues with far bigger implications!  Your assessment of the court and how people respond is spot on.  People's confusion between good legal process and obtaining the policy they want is exhausting, and until we get them to appreciate the difference we will keep have the same silly fights.


Most important though is your observation that "some people don't believe that anyone could honestly and with integrity disagree with their chosen judicial philosophy."  How true, and in pretty much all areas of life!


As long as people keep insisting that wisdom, honesty and integrity are limited to those policies with which they happen to agree, we are all in trouble.  That approach paralyzes government, starts wars, and genrally degrades the human condition.  The real opportunity of this moment, however one feels about the healthcare law, is to learn from a court which can, at it's best, see a bigger picture.

The headline to the chat assumes they are objective, which they most certainly are not. A better question might be "is it possible they could suppress their individual political agendas to stabilize the Law ?"

You are simply wrong about what the headline assumes, but given that the whole conversation is about the multiple ways in which a text can be read, I have to respect the possibility.  Certainly that is what it communicated to you, so I will ammend my original claim: you are wrong about what I believe and what most readers have understood.  I DO appreciate that in doing so, you gave us all a very pragmatic opportunity to see how multiple interpretations can arise from a single text, however brief. 


I am happy to address what you think would be a better question -- by which you mean the question you most want to ask.  I respect the desire, but try not to conflate "best" with whatever you most desire -- it's a misguided approach to pretty much everything.


The answer is that individual politcal aggendas can be surpressed, certainly at the level of conscious supression.  It get trickier when one is dealing with less concious desires, but that is true for all of us always, so unless we desire anlaysis which leads to paralysis, we msut press on as best we can, being as self-aware as we can, and leaving as much room for subsequent correction as possible.  That's true for SCOTUS and its Justices, and true for all of us as we go through our own lives.

As another attorney - I think that's true, but I think its also increasingly true that those philosophies themselves are developed and chosen on political grounds. After all, many of those philosophies are workshopped in academic circles and think tanks devoted to a particular political point of view. That doesn't mean one can't be impartial, but that does mean that certain political philosophies often, by design, go hand in hand with judicial ones.

You are certainly correct about the overlap which can and does occur between legal and politcal philosophies.  It really isn't surprising if one expects politcs to be a means through which we legally achieve our vision of a good society -- however that may be understood.  That is why I am much more interested in self-awareness and transparency than is in some presumtion of mechanistic impartialty.  The former demands caution and care while the latter is simply invoked and passed over.

As always, we have many more great comments and questions than we have time, but all are appreciated.


Don't forget that we can always continue the covnersation if you find me on facebook or follow me on twitter @bradhirschfield.


"Til next week,


In This Chat
Brad Hirschfield
Rabbi Brad Hirschfield is an author, radio and TV talk show host, and President of CLAL-The National Jewish Center for Learning and Leadership. His On Faith blog, For God's Sake, explores the uses and abuses of religion in politics and pop culture. He wrote "You Don't Have To Be Wrong For Me To Be Right: Finding Faith Without Fanaticism." Named as one of the nation's 50 most influential rabbis in Newsweek, and one of the top 30 "Preachers and Teachers" by, he is the creator of the popular series, Building Bridges, airing on Bridges TV, and co-host of the weekly radio show, Hirschfield and Kula: Intelligent Talk Radio. For more information see
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