Justices of the Supreme Court rarely give public comments on words or actions of members of the elected branches of the federal government. This made the recent spat between Chief Justice John Roberts and President Donald Trump over the role of partisanship in the federal judiciary all the more surprising and powerful. Although phrased in terse sentences (Trump’s were via Twitter), their words left much to unpack. What began as Trump decrying the decision of an “Obama judge” (a judge appointed by President Barack Obama), Judge Jon Tigar from the Northern District of California, who ruled against the administration’s policy of attempting to keep migrants at the border from applying for asylum, turned into a clash of sorts, with the chief justice directly responding to the president’s remarks for the first time.

Roberts retorted, “We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.” Roberts ended by saying that “the independent judiciary is something we should all be thankful for.”

The chief justice’s statement is admirable and his sentiments are predictable, but his analysis overstates the lack of interpersonal differences in the federal judiciary. This chief justice, more than most going back to the early days of the federal judiciary, is keenly aware of the importance of that institution’s legitimacy. Although in the years before Chief Justice John Marshall the federal judiciary was described in Federalist No. 78 as “beyond comparison the weakest of the three departments of power,” this characterization is much more debatable at the present. The court is often described as activist for ruling on issues that could potentially find resolution through the elected branches of government. Rather than constraining the court, Congress, because of its own gridlock, has become one of the great sources of the court’s political role.

But the current debate is about what drives judges’ decisions. Are they driven by political views? The judiciary was conceived with the notion of independence from political persuasion. Looking back at the Federalist Papers, which convey much of the commentary behind the edicts found in the Constitution, the paramount importance of an independent judiciary is clear. In Federalist No. 78 we have the words, “If, then, the courts of justice are to be considered as the bulwarks of a limited Constitution against legislative encroachments, this consideration will afford a strong argument for the permanent tenure of judicial offices, since nothing will contribute so much as this to that independent spirit in the judges which must be essential to the faithful performance of so arduous a duty.” This notion of insulation through lifetime appointments was designed to prevent the influence of politics on federal judges, as Federalist No. 78 continues: “That inflexible and uniform adherence to the rights of the Constitution, and of individuals, which we perceive to be indispensable in the courts of justice, can certainly not be expected from judges who hold their offices by a temporary commission.”

Roberts clearly channeled this philosophical milieu in his comments, but he neglected a more realistic assessment of the relationship between politics and the judicial branch. The nomination and confirmation of federal judges have become more politicized over time, with the recent nomination and confirmation of Brett Kavanaugh to the Supreme Court representing the most glaring case. For those who value the independence of the judiciary, the hope is that once confirmed, judges will strive to make decisions above the political fray (hence the chief justice’s words “the independent judiciary is something we should all be thankful for”).

The truth is much more complicated, however, because politics does in fact play a role in judicial decision-making. This of course comes down to how we define the relationship between politics and judges’ decisions as well as how we define the influence of politics. On that note we might say that preferences that are actually proxied by politics are highly predictive of judges’, and especially Supreme Court justices’, voting decisions. Studies of the relationship between political parties and judges’ decisions go back more than a half century. Most show the same outcome – that many judges’ votes can be predicted by their political-party affiliation or from the party of the president who appointed them. If this weren’t the case then we should not be able to determine how judges will vote based on the party of their appointing president. This should be even more highly underscored in complex cases in which judges’ decisions are not clearly dictated by black-letter law. We can infer this complexity through the justices’ rigorous case selection process that focuses on the cases that have led to disparate results among different judicial circuits or regions of the country.

The 2017 term case pipeline

The notion of federal judges’ votes as divorced from politics is more idealistic than realistic. Case in point: We can look to the Supreme Court’s decisions across the previous term (October Term 2017). This past term was the first since before 2005 when we saw conservative victories in all 5-4 ideologically split votes and was the term for the same period with the highest percentage of conservative victories in all of the court’s 5-4 decisions (ideological and non).

Taking a more detailed look, the present analysis examines the 2017 term case pipelines to see how partisanship helps us predict how judges vote in complex cases. To do this we can break down each case into its various levels, moving from district courts, to courts of appeals, to the Supreme Court. Because only federal judges are appointed by the president and are given lifetime tenure, cases moving through state court systems do not aid in this venture and so they were removed. The methodology is simple. We take the party of the appointing president of the district court judge and compare this to the dominant party of the appointing presidents of the three-judge appeals court panel. We then compare the dominant party of the appeals court panel with the dominant party of the Supreme Court’s majority based on the justices’ appointing presidents. If partisanship affects the judges’ decisions then we should see a higher than random accord between judges’ votes at the three levels when the partisanship matches and a disproportionate discord between judges’ votes when the parties are not matches.

Take for example Epic Systems v. Lewis, argued on the first day of oral arguments for the 2017 term. The flow of this case started in the U.S. District Court for the Western District of Wisconsin, where Judge Barbara Brandriff Crabb, a Democratic appointee, denied Epic System’s motion to compel arbitration. The U.S. Court of Appeals for the 7th Circuit panel — comprised of Judges Diane Wood (Democratic appointee), Ilana Rovner (Republican appointee), and John Robert Blakey (Democratic appointee) — voted to affirm the Crabb’s decision. This worked out to be a partisan relationship in which the majority appointing party of the appeals court judges accorded with the appointing party of the district court’s judge, and the district court’s ruling was affirmed. The Supreme Court then reversed the appeals court’s decision with a 5 to 4 vote along partisan lines. Justice Neil Gorsuch authored the court’s majority opinion and was joined by Roberts and Justices Samuel Alito, Clarence Thomas and Anthony Kennedy, all Republican appointees. The dissenters, all Democratic appointees, included Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan. Because a majority of Republican appointees in the Supreme Court reversed the decision of a majority of Democratic appointees in the appellate court, this relationship was coded as partisan as well. In effect, the three decisions in the Epic Systems chain led to two partisan relationships out of two possible relationships. This reasoning was then applied to all of the Supreme Court’s decisions for the term. If partisanship really is not a factor in decision making, then we should have random outcomes, or around a 50-percent total percentage of partisanship. The role of partisanship in the decisions will be more obvious, however, if the partisanship level of decision-making lands perceptibly above this 50-percent marker.

There are several caveats to this analysis at the outset. First, there were some discretionary decisions in terms of coding case outcomes. The court’s decision in Gill v. Whitford was to vacate the lower court’s decision on standing grounds. Decisions vacating a lower-court result are often in favor of the petitioner, as was the case in Byrd v. U.S., which was argued later in the term. For the purpose of this analysis, the result in Gill was coded as null at the Supreme Court level because it was premised on justiciability (standing in that instance) rather than on the case’s merits.

Across the court’s entire first sitting, 11 of the 15 coded decisions, or about 73 percent, accorded with partisan alignment. Along with Epic Systems, these included both courts’ decisions in Ernst & Young LLP v. Morris, the Supreme Court’s decision in National Labor Relations Board v. Murphy Oil USA (the appeals court in the case granted and denied the petition in part), the Supreme Court’s decision in Sessions v. Dimaya (the trial-court level was handled by a federal agency in that case), both decisions in Jennings v. Rodriguez (because the appellate court mainly affirmed the district court’s decision this was coded as partisanship alignment), and both decisions in District of Columbia v. Wesby. The Supreme Court’s decision was coded for partisan alignment in Class v. U.S., yet the lower court’s was not, as a majority-Republican panel affirmed the decision of a Democratic-appointed district court judge. No outcome was coded in Hamer v. Neighborhood Housing Services of Chicago, because the appeals court dismissed the case and the Supreme Court remanded the case back to the appeals court based on the appeals court’s error (Ginsburg’s majority opinion language in Hamer concludes in this regard, “We note…that our decision does not reach issues raised by Hamer, but left unaddressed by the Court of Appeals.). Finally the outcomes were coded as nonpartisan both in Jesner v. Arab Bank and in the Supreme Court for National Association of Manufacturers v. Department of Defense. The trial court level of NAM involved litigation in multiple districts and so a binary label on the appellate court decision would not capture the effects of the decision in the case.

In its simplest form the partisanship measure of the decisions for the October 2017 sitting looks like this:

The trajectory of the Jesner case is an acute counter-example to the theory that partisanship matters in federal judicial decision-making. In Jesner a U.S. Court of Appeals for the 2nd Circuit panel composed of a majority of Democratic appointees affirmed the decision of Judge Brian Cogan, a Republican appointee to the U.S. District Court for the Eastern District of New York. The panel’s decision was then affirmed not only by a majority of Republican-appointed justices, but by a 5-4 margin with only Republican appointees in the majority and only Democratic appointees in dissent. Although this example shows that the grip of partisanship is not inexorable, that is not to diminish the implications of partisanship in decision outcomes.

When extrapolated across the entire 2017-2018 term, these parallel-party-of-appointing-president similarities and alternative-party differences, marked by rulings in the same or different direction in the same cases, are the norm. The figure below shows the percentage of parallel- and alternative-direction rulings (depending on the partisanship of the appointing president) in each case pipeline by Supreme Court oral argument sitting.

Click graph to enlarge.

Each sitting aside from the January sitting had at least half of its decisions marked by partisan differences. The first three sittings each had over 70-percent partisan decision-making (73.3 percent, 72.7 percent and 75 percent, respectively). The average percentage across sittings does not equate to the total mean value because the number of coded arguments per sitting differs.

Although the partisan markers in the above analysis are not overwhelming in each instance, we should not expect them to be. There is much room for agreement between judges with alternate beliefs on many issues. At the same time, the differences shown in the statistics above are well beyond random happenstance.

This does not mean that judges are actively thinking that their decisions should accord with those of other judges appointed by presidents from the same party, and their decisions should differ from those appointed by presidents from the alternate party. Moreover, partisanship is likely not even the best measure of difference between federal judges. Preference-based measures tend to perform much more strongly than the appointing-president measure when trying to predict judicial votes. The fact is, though, that presidents seek like-minded judges for the federal judiciary, and these like-minded judges often have different priorities than judges nominated by presidents who also have different priorities. (If you are interested in learning more about how these measures apply to members of the federal judiciary, you might enjoy Lee Epstein, William Landes and Richard Posner’s work “The Behavior of Federal Judges.”)

We still should not reduce a judge’s role to mere voting behavior. Appellate judges write opinions that are not necessarily binary but often reflect a spectrum of views that cannot be easily reduced to “affirm” or “reverse.” When looking at voting outcomes, however, partisanship, at least in terms of the appointing president, helps to dictate the decisions of federal judges in complex cases moving through the federal judicial hierarchy.

Roberts’ statement defending an independent judiciary is accurate to a point. Although an “Obama judge” might not differ much from a “Clinton judge,” he or she will often have differing beliefs from a “Trump” or “Bush” judge. Judges are real people and as people they differ in beliefs. Any statement to the contrary elides significant research on the subject (for example). Reality does not permit us to run the counterfactual in the same instance of a Republican-appointed judge deciding on Trump’s asylum policy, but Tigar’s party affiliation might have, at least in part, helped dictate his view in the matter.

Idealistically we, like the Federalists, might hope and strive for pure and neutral judges who decide according to the rule of law and cast away personal preferences. But this is just that – a hopeful aspiration. Instead of dealing with a fiction, we might be better off accounting for differences among judges that sometimes boil down to divergences pinpointed by presidents of opposing parties, and acknowledge that those differences have implications for federal judges’ decisions.

You can get access to the entire term’s set of case pipelines on the data page at Optimized Legal (free login required).

This post was originally published at Empirical SCOTUS.

Posted in Empirical SCOTUS

Recommended Citation: Adam Feldman, Empirical SCOTUS: Differences between “Obama” and “Trump” judges, while sometimes subtle, can’t be denied, SCOTUSblog (Dec. 4, 2018, 3:54 PM), http://www.scotusblog.com/2018/12/empirical-scotus-differences-between-obama-and-trump-judges-while-sometimes-subtle-cant-be-denied/