A spat between President Trump and Chief Justice Roberts, in which Mr. Trump called a judge who had ruled against his administration’s asylum policy “an Obama judge,” causing Justice Roberts’ protestations that “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” sheds light on a very interesting, perplexing, and hugely important question: how is it possible for two different judges to look at the same case, and arrive at the opposite conclusion? After all, would it possible for two different referees to disagree on who delivered a knock-out in a boxing match? Or for two different accountants to disagree on whether the company is in the red or in the black?
In fact, Justice Roberts’ own court — the Supreme court of the United States — provides a perfect illustration that this seemingly absurd situation is routine: four to five decisions abound. How can this apparent absurdity be explained?
Well, as those who practice law know full well, the sports or accounting analogy does not really apply. Yet it is not our fault that most of us perceive judging in that totally misleading way. The government itself popularizes it, by decorating court buildings with murals and statues of Lady Justice. Her blindfold and two trays — one for plaintiff’s argument, the other for defendant’s — invites the thought of impartial weighing that goes on in the judges’ chambers, akin to referees’ counting of boxers’ hits, or adding up of numbers by accountants. And judges, too, strongly encourage the sporting analogy: “‘My job is to call balls and strikes and not to pitch or bat,” Justice Roberts declared during his confirmation hearings. “A good judge,” Justice Kavanaugh said “must be an umpire – a neutral and impartial arbiter who favors no litigant or policy.”
But once on the bench, judges abandon such principles of high-minded fairness. In fact, Justice Roberts’ clinching argument that the Affordable Care Act (otherwise known as Obamacare) was constitutional because it was a tax, was “pitched” by neither plaintiff nor defendant, but by Justice Roberts himself, who forgot at the moment that it was not his job to “to pitch or bat.”
The effects of judicial pitching are devastating, for two reasons. Firstly, it is natural for a judge to decide in favor of is own argument (which is why the foremost rule of “due process of the law” is that the judge cannot possibly be a party to the case he is adjudicating); and secondly, it is impossible to the opposing party to rebut judge’s argument: it comes in the decision itself, when it is too late to do anything about it. (Obamacare case also offers a textbook example of that: it was easy to show that the “tax” argument “pitched” by Justice Roberts was simply wrong — new taxation must originate in the House while such was not the case for Obamacare. If the “tax” argument would have been advanced by the government, it had no chance of making an impact — the plaintiff would have shown that it was invalid, and Justice Roberts would not have had the opportunity to use it.)
This was by no means an exception. Replacement of parties’ argument with that of judges’ own, so as to allow the judge to decide the case the way he or she wants to, is a ubiquitous procedure. When I sued a bunch of judges for doctoring the argument in my cases, I was told by Judge Garaufis that it constituted a “classical application of the judicial function” (grotesquely, the government argued, by citing Pearson v. Ray, that judges have the right to act from be bench “maliciously and corruptly.”) Though clearly a violation of due process of the law — in fact, a clear-cut obstruction of justice — substitution of parties’ argument by the judge does not even get considered as an instance of judicial misconduct or impropriety, and a judge does not get removed or reprimanded for conveniently not noticing an inconvenient argument, or for making up a bogus argument out of thin air (only the “appearance of impropriety” unrelated to judging — like womanizing, boozing, or drug use — can get a judge into trouble).
So this is how the deck is stacked: judges have the ability to decide any case any way they want to; it is all up to judge’s ideological leanings, and personal decency. The outcome cannot be forced by the strength of the argument, given judges’ ability to shirk it by ignoring incontinent argument, and to invent (or “pitch,” to quote Justice Roberts) the convenient one.
Judges’ ability to skirt “due process” with total impunity is what makes them so valuable to politicians, who badly need judges to both give the august aura of legality to whatever a given politician wants to do — or to block the action of the political opponent by denying its legality. Obama-appointed judges will stymie Trump; Trump-appointed judges would do the same to the democrats down the line.
It all is well known — or at least is vaguely sensed — but is somehow never talked about. Somehow, there is an unspoken rule in our public discourse: two branches of the government, the executive and the legislative, are fair targets for press’ prying, investigation, and criticisms. But as to judiciary — it is an article of civic faith that nothing bad should be said about them. Judges are our priests of civics; and of course nothing wrong should be said of the priests — something must be left holy. And so, judges are treated with awe — as honest, honorable, and upright,
The problem of course is, that they aren’t any of that at all. If Mr. Trump, who now and again breaks the taboo against publicly speaking ill of judges, keeps doing so and in the process helps cure this branch from its arbitrary nature by introducing due process into the judicial process, so cases are decided according to parties’ argument, and not judges’ inclinations or whim — so there is indeed no difference in process and outcome between an Obama judge and a Trump judge, Mr. Trump will be the most consequential president America ever had.
By far.