Keeping Politics Out of the Court?

Judges want us to believe that they are above “politics,” and, in fact, the advertisements running to support the retention of three of Tennessee’s sitting Supreme Court Justices urge us to “keep politics out of the court.” If that’s what they want, then they need to stop responding to voters the way they did when asked certain survey questions by The Family Action Council of Tennessee.

The survey questions asked of the state’s Supreme Court Justices were directed solely at trying to determine their judicial philosophy. For example, one question simply asked which of the justices on the U.S. Supreme Court they most identified with in terms of judicial philosophy. It asked if they agreed or disagreed with certain statements made by other jurists about judicial philosophy.

Here is how Justices Lee and Clark both responded:

It is my policy not to answer questionnaires in order to prevent any appearance that my consideration of a case that comes before the Supreme Court would be influenced by anything other than the record and the law applicable to that case. For that reason, I must respectfully decline to answer this questionnaire.

That sounds really great. Very high-sounding. But are they really being honest with voters?

When you read the survey, you’ll notice that not one question asked for the Justice’s view on any particular issue like abortion, gay marriage, the death penalty, or gun rights. Not one.

Not one question asked what they might do on any particular type of case. In fact, they weren’t even asked if they agreed with any particular decision in any particular case previously decided in any court in the entire world. Not one!

So what kind of “case” were they being asked about that if they answered they would be creating an “appearance” that they were being “influenced” by something other than the facts and the law? The correct answer is “none.”

In light of their answer, now consider this. These Justices are currently running advertisements that specifically tell us that they have upheld a high percentage of death verdict cases and they support Second Amendment rights.

In other words, they are eager to tell us what they want us to know about them, even on specific issues and types of “cases.” However, they want us to believe that judicial integrity somehow compels them not to tell us something as non-case specific as whether their judicial philosophy is more like Chief Justice Roberts or Justice Ruth Bader Ginsburg?

If that’s true, then they are beginning to sound like a bunch of politicians playing politics by hiding their views from voters on issues they don’t want them to know about. Like smooth-talking politicians, they seem more than willing to tell us what they want us to know, but completely unwilling to answer honest questions about things we want to know.

Consider this as well. The cover letter accompanying the survey given to them specifically cited the 2002 decision of the U.S. Supreme Court holding that judges could not be prohibited by any rule of judicial ethics from “announcing their views on disputed legal and political issues” (Republican Party of Minnesota v. White, 536 U.S. 765 [2002]).

Citing the case to them should have helped discourage the kind of answer they wound up giving. If nothing else, it should have put them on notice that the organization asking the questions knew better than to accept the kind of answer they gave. But it seems they didn’t care.

The point, apparently lost on these Justices, is that there is nothing in the law or the canons of judicial ethics that would cause them to say that they “must decline” answering the kind of questions they were asked—nothing except their own unwillingness to do so.

Like real politicians, the judges have done their politicking. Beginning today, voters will now have their chance to judge the politics of judges.


David Fowler served in the Tennessee state Senate for 12 years before joining FACT as President in 2006. Read David’s complete bio.

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