From a 9th Circuit dissent by Judge Alex Kozinski:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted……… When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases —or even the white spaces between lines of constitutional text………But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
A certain man was quoted about the lawyers of the time that would “strain at a gnat, and swallow a camel.” if either would advance their agenda.
It was not seen as being to their credit.
Even today, we are still afflicted with such hypocritical jurisprudence.
In a talk at Brigham Young University, Justice Neil Gorsuch denied that the Supreme Court is split along partisan lines. Chief Justice Roberts has made a similar denial. He disputes the idea that there are Obama judges and Trump judges.
Amy Coney Barrett, a conservative jurist who would like to join Gorsuch on Roberts on the Supreme Court, has echoed the Chief Justice’s view. At a conference at the College of William & Mary, she said: “The chief justice, I think, articulated what members of the judiciary feel.”
Gorsuch, Roberts, and Barrett are all presenting a myth. The Supreme Court is sharply divided along partisan lines. It’s true that some of the Republican appointees can be quirky in their votes at times. However, the four Democratic appointees vote as a block in the vast majority of controversial cases. And in these cases, at least four of the five Republican appointees typically line up on the other side.
The same pattern applies at lower levels of the federal judiciary. Do Gorusch, Roberts, and Comey think it’s a coincidence that leftist lawyers invariably want to bring their cases before Democratic appointees on the West Coast?
When I practiced law, I could almost always accurately predict how the tough the sledding would be in a non-frivolous civil rights case, for example, the minute I ascertained whether the district court judge had been appointed by a Republican or a Democrat. And this was in a less partisan environment than the one that exists today.
Why, then, do brilliant judges like the three mentioned above insist on the fiction of non-partisanship? One reason is that judges, and Justices in particular, want to believe they and their institution are special. Naturally, they chafe at the notion that they are just politicians in robes. There’s nothing special about that status.
Judges and Justices also want their decisions to be respected. If they are little more than politicians, there’s no reason to respect what they say.