Americans are taught that justice is blind. We are told that judges simply apply the law as written, faithfully interpreting statutes and constitutional provisions without regard to politics, ideology, or personal preference. The image is comforting: a neutral arbiter weighing facts and law, untouched by partisan passions.
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Yet anyone who has followed the modern judiciary for more than a few years recognizes a troubling reality. In most of the nation’s politically significant cases, the outcome can often be predicted less by the unambiguous language of the law than by the identity of the judge hearing the case. Before the first brief is filed and before oral arguments begin, seasoned observers frequently ask a simple question: “Who appointed the judge?”
The reason is obvious. In case after case involving elections, executive power, immigration, environmental regulation, gun rights, religious liberty, campaign finance, affirmative action, abortion, or administrative authority, judicial decisions frequently align with the political philosophies of the presidents who placed those judges on the bench.
This was not the Founder’s intention. The Constitution was to be law, not clay.
Words were chosen carefully. Powers were enumerated deliberately. Rights were specified explicitly. The purpose was to establish boundaries that the government could not cross regardless of who happened to hold office.
But a strange transformation has occurred over the last century. Today, many judges now view their role not as discovering what the law actually means but as rationalizing what they believe the law should mean.
The Founders envisioned something very different.
Alexander Hamilton described the judiciary as the “least dangerous branch” because it possessed neither the power of the purse nor the sword. Courts would exercise judgment rather than will. Their task was to interpret the law, not create it. The Constitution was designed to be the supreme law of the land, binding judges as much as legislators or presidents. The entire structure relies on the assumption that words have meaning.
After all, if constitutional language means whatever judges decide it means at any given moment, then the Constitution ceases to be law and becomes an empty vessel to be filled with whatever a partisan political appointee wants. The limiting function disappears.
Judicial philosophy was once critical.
An originalist judge generally asks what a constitutional provision meant when it was adopted. A textualist judge focuses on the ordinary meaning of the words enacted by lawmakers. Whether one agrees with these approaches or not, they attempt to anchor judicial decisions to something outside the judge’s personal preferences.
Now we have judges who embrace the concept of a “living Constitution.” They view constitutional provisions as evolving concepts whose meanings change with “contemporary values,” social developments, and political preference.
This explains why judicial appointments have become among the most contentious political battles in modern America. Politicians do not spend millions of dollars and wage fierce confirmation wars because they believe judges are merely calling balls and strikes. They fight because they understand that judicial decisions can determine public policy for decades.
If judges merely applied clear legal language, there would be little reason to obsess over who nominated them. Yet politicians on both sides clearly believe otherwise. Judges have frequently become little more than politicians in robes.
When a vacancy appears on a federal appellate court or on the Supreme Court, activists immediately begin calculating how future cases may be decided. The debate rarely focuses on legal craftsmanship or scholarly excellence. Instead, attention centers on expected outcomes.
Will the nominee favor broader regulatory power? Will the nominee support restrictions on firearms? Will the nominee be sympathetic to religious liberty claims? Will the nominee uphold executive actions? These questions dominate because everyone understands that judicial philosophy frequently predicts political results.
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Even more revealing is the public reaction to controversial rulings.
When courts produce outcomes that one side favors, supporters often celebrate the wisdom and independence of the judiciary. When the same courts produce unfavorable outcomes, critics suddenly denounce judicial activism and political bias.
Such reactions reveal an uncomfortable truth. Many people view courts not as institutions that apply law, but as political actors whose decisions are valuable only when they advance preferred policies. The judiciary itself encourages this perception.
Consider situations in which constitutional provisions written in straightforward language receive radically different interpretations depending upon the composition of the court. Citizens can see that legal reasoning is merely being used to justify a predetermined conclusion.
This perception carries enormous costs.
The rule of law depends upon public confidence that legal disputes are resolved according to neutral principles rather than political loyalties. Once citizens conclude that court outcomes primarily reflect the ideological preferences of judges, respect for legal institutions rightly begins to erode.
A society cannot long remain free if people come to believe that laws mean one thing before one judge and something entirely different before another.
Predictability is not merely convenient; it is essential to liberty.
Individuals can organize their lives around laws that are stable and understandable. They cannot do so when legal meaning changes according to the political composition of the judiciary.
As judicial appointments have become more important than statutory language itself, lawmakers gain incentives to write vague laws, and judges gain opportunities to fill in the blanks according to their own preferences. Power gradually shifts away from elected representatives and toward unelected courts.
The Founders warned repeatedly against the concentration of power because they understood human nature. No institution is immune from the temptation to substitute its own judgment for established rules. And judges have proven to be no exception.
The proper question in any legal dispute should not be whether a ruling advances a preferred political objective. It should be whether the ruling faithfully applies the law as it was enacted.
When Americans begin predicting outcomes by identifying the appointing president rather than reading the relevant legal text, something has gone dangerously wrong.
The survival of constitutional government ultimately depends upon the principle that laws govern people, not people governing through the manipulation of laws. When that occurs, the rule of law is no longer an operating principle; it becomes a joke.
Jim Cardoza is the author of The Moral Superiority of Liberty and the founder of LibertyPen.com. Read more of his essays there.
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