Marshall H. Tanick, BridgeTower Media Newswires
“How dreadful it is when the right judge judges wrong.”
— Sophocles, Antigone
(442 B.C.)
President Donald Trump unleashed a torrent of criticism last fall when he derisively tweeted that a federal court ruling halting one of his new immigration restrictions was issued by an “Obama judge.”
The remark, implying that judges slant their decisions to accord with their personal or political views, was grist for pundits, lawyers, and other observers, including judges. They deemed it an improper impugning of the impartiality of the judge who temporarily blocked on a nationwide basis the administration’s edict denying asylum to individuals crossing the southwest border who passed through another country without being denied asylum there. The edict was a significant limitation on the traditional practice of asylum seekers. The decision was rendered by U.S. District Court Jon S. Tigar, a 2012 Obama appointee in San Francisco, who previously was a California state court judge in East Bay Sanctuary Covenant Bay, No. 19-CV-04073-JST (N.D. Cal. Nov. 19, 2018).
That Tigar ruling was reimposed by the judge earlier this month after it was partially reversed and remanded by the 9th U.S. Circuit Court of Appeals, which has taken on a much more conservative view with the new Trump appointees, copying 12 of the 28 active jurists on what was once a liberal bastion.
The new ruling prompted an uncharacteristically modest reaction by the president, who called it “very unfair” ... I don’t think it should be allowed.”
It also prompted an emergency appeal by the president to the circuit court, which, within hours, rolled the ruling back to only two states, California and Arizona, within the 9th Circuit’s jurisdiction. That still wasn’t good enough for the president, who then immediately got the U.S. Supreme Court, including his two appointees, to overturn that injunction in its entirety during the pendency of the ongoing litigation, over the dissents of Justices Sonia Sotomayor, appointed by President Barack Obama and Ruth Bader Ginsburg, a President Bill Clinton appointee.
Among those weighing in at the time of the initial ruling last year was none other than U.S. Supreme Court Chief Justice John Roberts. In a swift and an unprecedented rebuke he chided the president that there are “no Obama judges or Trump judges, Bush judges or Clinton judges.”
The president, not content to ignore any push-back, characteristically counterpunched: “Sorry Chief Justice Roberts, but you do indeed have ‘Obama judges,’ and they have a much different point of view...”
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University unveiling
A preview of the contretemps was unveiled in Minnesota a month earlier. Speaking at the University of Minnesota last October, after the contentious confirmation hearing for Supreme Court justice nominee Brett Kavanaugh, the nation’s top jurist told a gathering of law students, faculty, and others that he and his judicial colleagues “do not serve one party or one interest. We serve one nation.”
His remark echoed an earlier one by a high court colleague, Justice Clarence Thomas. Although he says very little off the bench, and even less on it, he stated in an off-the- bench televised interview a number of years ago that he and his court cohorts “don’t do politics,” a viewpoint reiterated last week in another extra-judicial remark by Justice Neil Gorsuch, in which he disdained ideologues and urged “judges to stay in their lanes” in an interview shown on the “Fair and Balanced” Fox News Network, the president’s favorite news outlet.
The chief’s affirmation of partisan and ideological indifference is the kind that could be emblazoned on a judicial building, while the president’s seems the type consigned to the various expression of self-pitying victimization that characterize so many of his tweets and other remarks.
Despite the applause that greeted Roberts’ remarks, before, and during, and after, his kerfuffle with Trump, some have mumbled that, perchance, the president is right: judicial rulings often do reflect the ideology and even partisan leanings of those who appoint them to the bench.
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Reality ruling
A manifestation of this oft-unspoken reality occurred this month in a ruling by the 8th U.S. Circuit Court of Appeals in a high-profile case out of St. Cloud, Minnesota, Telescope Media Group v. Lucero, 2019 WL 3979621 (8th Cir. Aug. 23, 2019).
The lawsuit concerned a claim by a self-proclaimed Christian couple running a videography business in that community who want to advertise on their website that, due to their religious beliefs, their services for weddings exclude same-sex marriages. They sued the Minnesota Department of Human Rights, which oversees the state anti-discrimination laws, for a pre-emptive ruling to allow their exclusionary advertising, which the department deemed unlawful.
The St. Cloud same-sex wedding case is a descendant of the Supreme Court ruling in 2015 requiring recognition of same-sex marriages in Obergfell v. Hodges, 135 S.Ct. 2071 (2015) the 5-4 decision that, incidentally both Chief Justice Roberts and Justice Thomas opposed. It is even more closely connected to another suit, the high court’s ruling last year in Masterpiece Cake Company v. Colorado Civil Rights Commission, 138 S.Ct. 1719 (2017) reversing a Colorado state human rights commission decision requiring a baker to serve a wedding cake at a gay marriage, despite the baker’s sincerely-held religious objection to the same-sex event due to the commissioner’s flawed decision-making process.
After hearing the case entitled in St. Paul nearly a year ago, the appellate decision was issued late last month by the 8th Circuit, holding that the videography couple could engage in that marketing and, as a corollary, presumably live up to their word in refusing to provide their services to same-sex marriage celebrants. In so doing, the court, by a 2-1 vote, reversed a lower court ruling by John Tunheim, the chief judge of the federal court in Minnesota, who two years ago ruled against the couple in a rather blistering broadside that equated their marketing plan as similar to advertising a business facility as being for “Whites Applicants Only,” a matter that has been analyzed before in this posting.
But the appellate jurists, or at least two of them, viewed it differently, deeming the state’s position antithetical to the couple’s advertising overture as an unconstitutional infringement on “protected speech” by trying to censor their “communication of ideas.” The state’s position, the appellate duo declared, impermissibly “compels (the videographers) to speak favorably of same-sex marriage” if they seek to do any wedding-related work, which it found to violate the First Amendment right of freedom of expression and its offspring doctrine barring government-compelled speech.
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Telescope tussle
The decision in the case telescopes the tussle between the president and the chief justice into focus.
The ruling was authored by Judge David Stras, a Minnesota jurist who had been elevated by Trump two years ago from the Minnesota Supreme Court to the federal circuit court. A member of the conservative Federalist Society, which has been an almost exclusive breeding ground for Trump judicial appointees, Stras has long been a favorite of the president, who had him on his 2016 campaign list of prospective high court nominees. In fact, it has been surmised that his ruling in this case may bolster his potential for filling any upcoming vacancy on that tribunal, a prospect perhaps enhanced by his status as a Minnesotan and Trump’s obsession with carrying the state next year that he so narrowly lost by about 1.5% last time.
The touchstone of the majority opinion by Stras turned on characterizing the video graphic couple’s grievance as based on suppression of legally permissible speech, rather than verboten conduct. Recognizing the legitimacy of laws that ‘permeate all sorts of conduct ... of harmful behavior,” Stras explained that government may not “interfere with speech ... [by] punishing an aggrieved message or discouraging an unfavorable one, however enlightened either purpose may strike the government.”
Stras was joined in his opinion by Judge Bobby Shepherd, an Arkansas jurist who was appointed years ago by Trump’s most recent Republican predecessor, George W. Bush. But one judge objected, Jane Kelly, an Iowan, who concurred in part and purposefully dissented. An Obama appointee, she described the majority ruling as a “major step backward” in the lengthy and arduous “journey to combat all forms of discrimination,” and she predicted that it would launch a “flood of litigation” involving “new forms of discrimination” on the basis of race (“interracial weddings”), religion (“Jewish ceremonies”), and other types of invidious bias.
The views of these three jurists would unquestionably parallel those of the men who appointed them and the bulk of the members of their respective parties. One could almost visualize or audio visualize the appointing president’s expressing the same views as the appointees, although not as articulate necessarily by all of them.
The majority decision was, in Trumpian terms, a triumph of a “Trump judge” and a “Bush judge,” over the contrary position of an “Obama judge.”
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Decision disparities
This is not an outlier.
A number of studies, both formal academic ones and informal reviews, have highlighted the noticeable differences between the outcomes of highly volatile cases with strong ideological, political, or sociological overtones based upon the identity of the president who appointed the jurists rendering the rulings. E.g. C. Johnson, et al. “On the measurement of Judicial Ideology,” 37 Justica System Journal 206, issue 2, pp. 169-188; R. Wolff “Trump, Obama and Clinton Judges, Border emerging lawsuit to test all,” USA Today (March 17, 2019).
While this dichotomy is not as reflected in run-of-the-mill or routine cases, like contract disputes, personal injury actions, and other less contentious matters, it is a reality in cases that have strong implications for political interests and social values.
Not surprisingly, the disparity has grown with the increasingly large partisan chasm that has developed in recent years, especially since Trump’s election. In most of the voluminous litigation involving the president and his administration, rulings unfavorable to him, like the asylum case, have been made by judges appointed by Democrats, while the vast majority of the rulings favorable to him have come from his appointees or those of his Republican predecessors. This is particularly so at the high court, where the chief justice and Thomas sit. There are notable but limited exceptions, like Roberts three months ago thwarting the administration’s attempt to place a citizenship question on the upcoming census in Department of Commerce v. New York, 139 S.Ct. 2551 (June 27, 2019). But overwhelmingly the Republican appointees, especially the two appointed by Trump, have voted in favor of the administration’s stance, and the Democratic appointees, including the two “Obama” judges, have just as frequently differed.
This tendency reflects the validity of the president’s observation about the judicial process: the most predictive feature of any ruling in high-profile cases tinged with political or social implications is the identity of the person who appointed the jurist. This holds true not only in proceedings in federal courts, where judges are appointed by the president subject to confirmation by the senate, but also on those state court benches, like Minnesota, where judges are appointed by the governors subject to renewal votes by the electorate.
There are, to be sure, a number of instances varying from this pattern, such as Supreme Court Justice Harry Blackmun of Minnesota and an overlapping colleague, Justice John Paul Stevens, who died this summer. Appointed by Republicans, they evolved into fairly reliable members of the liberal bloc on the tribunal. The same is true, at the other end of the spectrum, of another of their colleagues, Justice Byron White, a political backer of President John F. Kennedy and member of his Justice Department, who increasingly advanced conservative views on the court following his appointment by JFK.
But those are the exceptions that, as the saying goes, prove the rule, and the rule is that, as Trump’s heavy-handed remark implies, judges often do tend to rule in the way that their appointees would if they were calling the shots.
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Antithetical analogy
This is, of course, antithetical to the view expressed by Roberts during his confirmation hearing in 2005, when he famously characterized the role of a judge as like a baseball umpire calling balls and strikes.
His description evoked the image of an automaton making robotic rulings within very narrow pre-established boundaries, the knees-to-armpits strike zone.
But his analogy overlooks that the judges, especially on upper level appellate tribunals, actually set different ideological strike zones and then decide whether the case falls within or outside the particular bounds they have established. A judge is more like a painter choosing which colors to pick from the palette, rather than a camera depicting what is the in viewfinder.
That judicial rulings turn on pre-existing ideological, sometimes partisan, viewpoints, as Trump bemoaned, is one of the dirty little secrets of litigation. Lawyers and other participants in the process are not supposed to acknowledge it, lest they call into question the independence of the judicial branch and have their own professional credentials be called into question for impugning the judiciary.
Correspondingly, savvy litigation lawyers can usually forecast with a relatively high, but not perfect, degree of accuracy, the outcomes of their cases based upon the identity of the judges presiding over them. That’s why they often will strive to position their cases in front of favorably-tilted judges and go to great lengths to avoid particular jurists whom they deem unfavorable to their causes; they don’t want those umpires calling the pitches in their games.
These observations may lead some to paraphrase the famed New York Sun editorial of Sept. 21, 1892, calming a frenzied 8-year-old girl about disbelievers in Santa Claus: “Yes, Virginia, there are ‘Obama judges’ and ‘Trump’ ones, too.”
It’s likely that the St. Cloud videographers have not seen the end of their litigation. An appeal from the ruling of the three-judge appellate panel to the full 8th Circuit tribunal is probable, coupled with a request for reconsideration of the Stras ruling. Depending upon how those steps turn out, the case might be appealed to the Supreme Court.
If it reaches that level, its fate will lie in the hands of the adjudicators there: Chief Justice Roberts, Justice Clarence Thomas, and their judicial colleagues, including a pair of Obama appointees and, as of now, two named by Trump.
As stated by famed baseball catcher Yogi Berra, who squatted in front of many an umpire in his day: “It’s not over till it’s over.”
