President Donald Trump unleashed a torrent of criticism last November when he derisively said 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, who deemed it an improper impugning of the impartiality of the California jurist who made the decision barring the administration’s edict that immigrants seeking asylum because of abuse in their homelands must apply at a point of entry, a significant limitation on the traditional practice of asylum seekers.
Among those weighing in was none other than U.S. Supreme Court Chief Justice John Roberts. In a swift and 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, counterpunched with an assertion that he was correct and the chief did not know about what he was pontificating.
A preview of the contretemps had been unveiled here in Minnesota a month earlier. Speaking at the University of Minnesota last October, 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 Supreme Court colleague, Clarence Thomas. Although he says very little off the bench, and even less on it, he stated in an interview a while ago that he and his Supreme Court cohorts “don’t do politics.”
The chief’s affirmation of partisan and ideological indifference is the kind that that could be emblazoned on a judicial building, while the president’s seems the type consigned to the various expressions of self-pitying victimization that characterize so many of his tweets and other remarks.
Despite the applause that greeted Roberts’ remarks, before and during 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.
A manifestation of this oft-unspoken reality occurred in August in a ruling in a high-profile case out of St. Cloud. 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, because of 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.
After a hearing in the case, Telescope Media Group v. Lindsey, in St. Paul nearly a year ago, the decision was issued Aug. 23 by the Eighth Circuit Court of Appeals, which adjudicates federal court appeals in Minnesota and six surrounding states. It held that the videography couple could engage in that marketing and, as a corollary, refuse 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 space. (See MinnPost, “On the same-sex video case here and the ‘cake’ case in Colorado,” Sept. 29, 2017.)
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 be violative of the First Amendment right of freedom of expression and its offspring doctrine barring government-compelled speech.
The Telescope ruling: not an outlier
The decision in the Telescope case is where the validity of Trump’s tirade comes into focus.
The ruling was authored by Judge David Stras, a Minnesotan who had been elevated two years ago by Trump from the Minnesota Supreme Court to the federal appellate position.
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 Supreme 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 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, as if political considerations were to play a role in decision-making by judges or judicial appointments by presidents.
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. 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. 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.”
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. 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.
Increasingly large political chasm
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 Supreme Court, where the chief justice and fellow jurist Thomas sit. There are notable but limited exceptions, like Chief Justice Roberts three months ago in the administration’s attempt to place a citizenship question on the upcoming Census in Department of Commerce v. New York. 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 Supreme Court colleague, John Paul Stevens, who died in July; 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 tend to rule in the way that their appointees would if they were calling the shots.
Balls & strikes
This is, of course, antithetical to the view expressed by Chief Justice Roberts. During his confirmation hearing in 2005, 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 what his analogy overlooks is that judges, especially at upper level appellate tribunals, actually set the strike zone and then decide whether the case falls within or outside the bounds they have established.
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. So, please disregard what you just read.
Correspondingly, savvy litigation lawyers can usually forecast with a relatively high, but not perfect, degree of accuracy the outcome 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.
But that’s another one of those soiled secrets that attorneys are not supposed to reveal. So, disregard that, too.
Back to the St. Cloud same-sex wedding case. It’s a descendant of the Supreme Court ruling in 2015 requiring recognition of same-sex marriages in Obergfell v. Hodges, a 5-4 decision that, incidentally, both Chief Justice Roberts and Justice Thomas opposed. It’s even more closely connected to another suit, the High Court’s ruling last year in Masterpiece Cake Company v. Colorado Civil Rights Commission reversing a Colorado 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.
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 Eighth 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 highest rung in the Federal judicial ladder: the Supreme Court.
If it reaches that level, its fate will lie in the hands of the adjudicators there: Roberts, Thomas, their brethren and sisters, and any Trump appointees.
As stated by famed baseball catcher Yogi Berra, who squatted in front of many an umpire in his day: “It’s not over ‘til it’s over.”
Marshall H. Tanick is Twin Cities constitutional law attorney and historian.
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