Three years into the Trump presidency and especially in the aftermath of Justice Kavanaugh’s elevation to the Supreme Court, the ideal of judicial impartiality is once again central in our public discourse. Because we have, in turn, a president especially skeptical of the judiciary’s separation from partisanship, heightened political polarization, and heightened stakes around judicial rulings in this age of gridlocked governance, the question of how judges approach their work has assumed a significance that goes beyond concern over the outcomes they will reach.
However, as important as the concept of judicial impartiality may be, it is worth pausing to examine what speakers generally mean when they mention the term. In this article, I argue that at its core, the invocation of “judicial impartiality” in political discourse speaks to an ideal of fairness: an impartial judge is a person who acts in a fair manner toward all parties in a case appearing before them. My focus in this article is on examining the concept of judicial impartiality in this familiar sense, with the hope of providing some insight into the underlying norms that structure our public discourse around judicial appointments, judicial rulings, and responses by elected officials to judicial rulings.
This article seeks to advance three claims. First, I claim that the divergent Democratic and Republican views on judicial impartiality—as illustrated the context of the Supreme Court confirmation hearings and debates for Chief Justice John Roberts and Justice Sonia Sotomayor—are rooted in each party’s distinct electoral coalitions and ideological histories. Secondly, I claim that notwithstanding these divergences, both Democratic and Republican-appointed justices on the Supreme Court share a common institutional environment at present of judicial uncertainty. This shared institutional condition, I argue, alters how Democratic and Republican-appointed justices are able to implement their respective visions of judicial impartiality in actual adjudication. On this point, I discuss some of the Roberts Court’s recent rulings on race and equal protection to help anchor the examination of judicial impartiality in constitutional doctrine. Finally, in the final portion of the article, my argument takes a normative turn in making my third claim: accepting that some degree of partiality is inevitable in the judicial role, judicial impartiality is best understood as denoting a consistent, good-faith engagement with the claims and interests of those who lie outside the social groups that are aligned with a judicial actor. I conclude the article with a few words on what this conception of judicial impartiality might imply, or even demand, of Democratic and Republican-appointed judicial actors seeking to uphold the ideal of judicial impartiality in the present time.
"The Meaning of Judicial Impartiality: An Examination of Supreme Court Confirmation Debates and Supreme Court Rulings on Racial Equality,"
Utah Law Review: Vol. 2019:
5, Article 1.
Available at: https://dc.law.utah.edu/ulr/vol2019/iss5/1