Just days after the midterm elections, we have received two politically salient judicial decisions. The first was the Sixth Circuit’s decision upholding same-sex marriage laws. The second was the Supreme Court’s decision granting certiorari in King, a new challenge to implementation of the Affordable Care Act. If these decisions had come out a week earlier, they could well have become part of late-phase campaigning. Maybe the timing here was a coincidence—certainly many more improbable coincidences happen every day—but it still raises an interesting question: should federal courts time their decisions so as to avoid becoming subjects of last-minute electioneering?
There is at least one mildly paradoxical argument in favor of postponing resolution of politically salient cases: it helps maintain the judiciary’s apolitical appearance. When courts issue hot button issues in the fever of election season, they become part of the political give and take. This can increase the temptation to demagogue judicial decisions and so undermine judicial independence. Impartiality concerns are especially powerful for federal judges, who self-consciously think of their role as being apart from politics. Perhaps relatedly, it is often said that Justices strive to time their retirements to avoid election years.
However, even if we assume that federal courts can time their decisions in a way that reduces public scrutiny (a significant assumption), there are still strong counterarguments.
Perhaps most obviously, justice delayed is justice denied. Any delay unrelated to getting the merits right on the law is a meaningful reduction in the judiciary’s performance of its core function. In often focusing on systemic considerations related to efficient or convenient decision-making, we risk becoming inured to the real people who lie behind real cases. Those real people can suffer as a result. Similar concerns arise, for example, when the Supreme Court allows “percolation” regarding otherwise certworthy issues.
What’s more, treating politically salient cases differently can have psychological implications, insofar as it gets judges in the habit of categorizing their decisions in political terms and anticipating the political consequences. As I’ve noted before, what starts out as an innocent effort at political calculation can easily and even imperceptibly blur into partisan thinking. At worst, judges used to political thinking might start postponing politically salient decisions in a way that actually or apparently favors one side of the political debate over another. It is hard to imagine anything more corrosive to actual or perceived judicial independence. But there may be a solution: judges can adopt a rule that any politically salient case should be postponed, or even that no decisions should issue during a period before an election. From my armchair, this kind of approach seems to allow judges to avoid thinking about which partisan interests would be advantaged or not by postponement. And a relatively bright-line rule would have the added benefit of preventing subconscious or bad-faith gamesmanship.
Finally, the idea of keeping the judiciary out of the political spotlight might just seem fundamentally misguided. If the courts are doing politically salient things, then that is something that the polity should know about, including at the start of November, when voters can do the most about it. There is little virtue—and considerable room for vice—in “stealth” courts. And while there certainly is a risk that politically salient decisions might become the subject of partisan demagoguery, that is the kind of risk that democracy routinely creates. If U.S. democracy and the constitutional order are healthy, then efforts at demagoguery will be met with substantive responses, to the benefit of all.
In light of the above, I hope that this week’s decisions were timed by coincidence, and weren’t postponed for political reasons.