Nowhere is the problem of asymmetrical rhetorical warfare more apparent than in the federal judiciary. For the past several years, federal judges, notably those appointed by Donald J. Trump, have felt unmoored from any standard judicial conventions of circumspection and restraint, penning screeds about the evils of “big government” and rants against Planned Parenthood. Most of the judicial branch, though, has declined to engage in this kind of rhetoric. There are norms, after all, and conventions, standards, and protocols. There seems to also be an agreement that conservative judges demonstrate deeply felt passion when they delve into such issues, while everyone else just demonstrates “bias” if they decide to weigh in. So when Justice Clarence Thomas just last year used a dissent to attack the integrity of a sitting federal judge in the census case, it was mere clever wordsmithing. But when Justice Sonia Sotomayor suggests, as she did recently, that the conservative wing of the high court seems to be privileging the Trump administration’s emergency petitions, she is labeled—by the president himself—unfit to judge. It’s such a long-standing trick, and it’s so well supported by the conservative outrage machine, that it’s easy to believe that critiques of fellow judges by conservative judges are legitimate, while such critiques from liberal judges are an affront to the legitimacy of the entire federal judiciary.
This dynamic is why it’s so astonishing to see progressive judges really go for broke in criticizing conservative bias in the judiciary, as U.S. District Court Judge Lynn Adelman does in criticizing the five conservative justices on the Roberts Supreme Court in an upcoming Harvard Law & Policy review article.* The article begins, brutally:
By now, it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes” was a masterpiece of disingenuousness. Roberts’ misleading testimony inevitably comes to mind when one considers the course of decision-making by the Court over which he presides. This is so because the Roberts Court has been anything but passive. Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals.
Adelman, who sits in the Eastern District of Wisconsin, goes on to methodically chronicle that which is hardly news to anyone who has observed the rightward turn of the Supreme Court. His article brings into clear relief the court’s systemic attack on voting rights for minority and other marginalized communities, by way of striking down a key section of the Voting Rights Act, as well as repeated blessing of voter suppression and decisions not to adjudicate political gerrymandering. He notes that the court privileges the wealthy and corporate interests at the expense of the public. He lays out in detail the rise of the conservative legal movement, starting with the infamous 1971 Lewis Powell memo that served as a right-wing call to arms and tracing its progress through the current well-funded effort to reverse the New Deal in the courts. The article ultimately portrays the slow movement of the Supreme Court to the right—and then the far right—through a long line of cases that reversed the Warren court’s protections for minority groups and poor and working-class Americans. It shows how the court has undermined unions and boosted corporate interests. The court, he notes, has greatly contributed to income inequality, health care inequality, and the hollowing out of the American middle class.
Adelman ends with this caution:
We are thus in a new and arguably dangerous phase in American history. Democracy is inherently fragile, and it is even more so when government eschews policies that benefit all classes of Americans. We desperately need public officials who will work to revitalize our democratic republic. Unfortunately, the conservative Justices on the Roberts Court are not among them.
Color commentary aside, none of these facts is a matter of dispute. Indeed, most of the article is the descriptive stuff of triumphalist Federalist Society touchdown dances at national conferences. Sen. Sheldon Whitehouse, among others, has been chronicling this shift for years now. So the only material question is who gets to say it. Is it somehow over the ethical line when a progressive judge puts these observations into writing?
Five years ago, we’d have said yes, it goes too far. Under any set of ordinary circumstances, it is always better for life-tenured jurists to stay in their lane, avoid partisan political criticism, and work to preserve the vitally important norms of judicial independence and nonpartisan, oracular judicial temperament. But there remains the question—possibly the abiding question of our time—about whether only one side can remain beholden to norms when the other has eviscerated them.
Evisceration is not an exaggeration. Judge James Ho, a Trump appointee to the 5th U.S. Circuit Court of Appeals, has assumed the role of robed Fox News commentator. He disparages women who get abortions, as well as judges who uphold their right to do so. He claims that we can stop mass shootings by shielding police from lawsuits when they accidentally murder innocent people. He intentionally misgenders transgender litigants—as does his colleague, Kyle Duncan, a fellow Trump appointee. Another judge on the 5th Circuit, Edith Brown Clement (a George W. Bush appointee), penned a partisan attack on her colleagues. And, under the influence of Trump’s judges, the 5th Circuit as a whole has begun defying Supreme Court precedent in a series of blatantly political decisions.
A startling number of Trump judges appear to believe that, like Ho, their job is mainly to own the libs in print. Neomi Rao, a Trump judge on the U.S. Court of Appeals for the District of Columbia Circuit, has created a cottage industry out of writing preposterous Trump-friendly polemics. On the same morning that South Texas College of Law Houston professor Josh Blackman expressed his outrage at Adelman’s article, Rao issued yet another dissent that would protect Trump, this time by denying the House of Representatives access to the unredacted Mueller report. Rao’s position is so extreme that Thomas Griffith, a conservative George W. Bush appointee, penned a separate concurrence just to shred it. It is impossible to ignore the fact that Rao keeps running interference for the Trump administration, making arguments that are promptly shunned. And it is difficult to avoid the conclusion that her lengthy, contorted dissents begin with the proposition that Trump must triumph and work backward from there.
At what point do judges on the left push back? Judge Carlton Reeves of Mississippi, a Barack Obama appointee, attempted to do so in a 2019 speech, though he primarily focused on Trump’s “assault on our judiciary.” Waiting around for the chief justice to wade in, on the occasions he opts to wade in, has proven almost fruitless for sitting judges who feel increasingly like sitting targets. No sitting judges have dared to question whether it’s appropriate for, say, Clarence Thomas to accuse a lower court judge of being a conspiracy theorist and a partisan hack. None have publicly asked why the Supreme Court’s conservatives keep misreading a 1925 law in order to shut down class-action lawsuits to the great benefit of big corporations. Lawyers on the left are supposed to accept that conservative judges call balls and strikes no matter what, while liberal judges engage in activism if they try to protect minorities, women, and the poor. Note also that Reeves did not make his argument in a judicial opinion; he did so in a speech. Adelman did so in a law review article. These are not binding legal judgments, and have no force of law, unlike the opinions of some of Trump’s chosen gladiators. These are extrajudicial writings, no different from those offered up almost yearly by Judge Richard Posner, who opined in books, speeches, op-eds, Slate articles, and elsewhere.
Adelman’s critique of the court’s conservative wing is not particularly seemly or polite. But it was not all that polite when the Supreme Court accurately noted that the Virginia judiciary endorsed “the doctrine of White Supremacy” in upholding interracial marriage bans. It was not especially polite when the 9th U.S. Circuit Court of Appeals found that Arizona legislators suppressed minority votes out of racism. It was not all that polite when Justice Anthony Kennedy wrote that Colorado voters discriminated against gay people out of sheer animus. It is in the finest tradition of the judicial branch to sacrifice decorum and politeness to calls for actual justice, especially when the rights of minorities, women, the poor, and the disenfranchised have been hollowed out by monied interests and the political branches that answer to them. In that sense, the real tragedy here is that progressive judges will be pilloried for saying out loud what conservative judges have secretly, and not so secretly, crowed about themselves for decades.
For more on the law—and the justices who interpret it for the rest of America—listen to the most recent episode of Amicus.
Correction, March 11, 2020: Due to an editing error, this article originally referred to the Harvard Law & Policy Review as the Harvard Law Review.