Claims of neutrality in SCOTUS confirmation hearings have negative effects on the legitimacy of the Court as an institution

Here’s the abstract for Carolyn Shapiro’s The Language of Neutrality in Supreme Court Confirmation Hearings, Dickinson Law Review, Forthcoming:

At Justice Neil Gorsuch’s confirmation hearing, then-Judge Gorsuch repeatedly insisted that judging involves no more than examining the legal materials — like statutes and precedents — and applying them to the facts of the case. There is, he emphasized, no room for a Justice’s “personal views,” and he refused even to state his agreement (or disagreement) with such iconic cases as Loving v. Virginia and Griswold v. Connecticut. Instead, then-Judge Gorsuch reiterated only that they were precedents of the Court and thus entitled to respect. Frustrating as his answers may have been to some Senators, however, they differed from answers given by other recent nominees largely in degree and tone, not in kind. Indeed, all four most recent nominees before Gorsuch — but especially Chief Justice Roberts and Justice Sotomayor — made similar claims, of which Roberts’s invocation of the neutral umpire is only the most famous.

Such forceful claims of neutrality and their attendant implication that there are necessarily right and wrong answers to difficult legal questions — answers that can be determined through deductive reasoning or by examining legal texts through the right lens — are not new, but their role and prominence in Supreme Court confirmation hearings have changed over the years. Using both qualitative and quantitative analysis, including empirical research on confirmation hearings already reported, this Article charts the history of such discussions in Supreme Court confirmation hearings from Justice Harlan’s hearing in 1955 through Justice Gorsuch’s hearing in 2017 — the period of time during which all nominees have been expected to appear before the Senate Judiciary Committee. More specifically, the Article focuses on the extent to which nominees and Senators have claimed that there are objectively correct answers to the hard questions faced by the Supreme Court or, alternatively, have acknowledged and discussed the reality that textual and historical sources often do not provide clear answers and that Supreme Court Justices must balance competing interests, precedents, and constitutional principles and apply constitutional provisions and doctrines in new and complex factual circumstances.

Specifically, the Article establishes that during the Warren court years, claims of objectivity were often made by conservative Senators, with relatively little discussion of alternative views of judging by either Senators or nominees. By the late 1980s and 1990s, however, Senators and nominees were having surprisingly candid conversations about the role of the Supreme Court, conversations that acknowledged the importance of judgment and judicial philosophy in resolving many difficult constitutional questions. Since 2000, however, nominees have largely eschewed such discussions and, along with Republican Senators, have embraced claims of objectivity and neutrality.

As the Article demonstrates, however, such claims about the Court and its work are highly inaccurate, and they may have negative effects on the legitimacy of the Court as an institution. After all, when the Court announces its decisions in difficult cases, members of the public can plainly see that different Justices both approach those cases differently and often disagree about the result in predictable ways. News media regularly refer to the “liberal” and “conservative” Justices. So there is a significant disconnect between the claims made during confirmation hearings and the actions the Justices take — and research suggests that such a disconnect can undermine public confidence in the institution. The Article closes by proposing that Senators use their questions during confirmation hearings to combat the myth that judging, especially on the Supreme Court, is necessarily about reaching objectively correct, logically deducible conclusions.

— Joe

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