Judging Hypocrisy

JurisdictionUnited States,Federal
Publication year2020
CitationVol. 70 No. 2

Judging Hypocrisy

Todd E. Pettys

JUDGING HYPOCRISY


Todd E. Pettys*


Abstract

Editorialists, politicians, and others sometimes accuse U.S. Supreme Court Justices of hypocrisy, especially when they believe that divisions among the Justices are the product of partisan loyalties rather than good-faith differences in impartial legal judgment. These hypocrisy charges pose a serious threat to the Court's legitimacy. In legal circles and elsewhere, however, one finds a remarkable lack of clarity about what hypocrisy is and the moral precepts that define its boundaries. As a result, participants in public discourse about the Court can easily find themselves talking past one another. To be assured that the Justices are not hypocrites with respect to their commitment to impartiality, for example, is it sufficient to be persuaded that the Justices are not trying to deceive us when they say they do not regard themselves as mere politicians in robes, or is more required?

In this Article, I offer a conceptual framework for thinking about hypocrisy of all sorts. I argue that hypocrisy appears in three principal forms—Faking Hypocrisy, Concealing Hypocrisy, and Gerrymandering Hypocrisy—and I identify the anti-equality thread that runs through all of them. I then show how this three-part framework can deepen our thinking about the work of the Court. With respect to the Justices' pledge to be impartial, for example, I argue that there are circumstances in which the Justices can be guilty of hypocrisy only if they are schemers bent on duping the American public into believing they are unbiased. In other circumstances, however, the Justices can be guilty of hypocrisy even if they sincerely believe they are doing what the law requires.

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I. "The Intelligent Person on the Street"...................................253
II. Hypocrisy's Fundamentals.........................................................256
A. What Is Hypocrisy? .................................................................. 257
1. Preliminaries ...................................................................... 257
2. Defining Hypocrisy............................................................. 260
a. The Faking Hypocrite .................................................. 263
b. The Concealing Hypocrite ........................................... 267
c. The Gerrymandering Hypocrite .................................. 269
B. Why Is Hypocrisy Morally Objectionable? .............................. 270
III. Considering the Case Against the Justices..............................275
A. The Justices' Communicated Commitment to Impartiality....... 275
B. The Justices' Vulnerability to Skepticism ................................. 280
C. Evaluating the Case for Faking, Concealing, or Gerrymandering Hypocrisy ...................................................... 290
1. Faking and Concealing Hypocrisy..................................... 290
2. Gerrymandering Hypocrisy ................................................ 295
IV. It's Not All About Impartiality................................................303

Conclusion.................................................................................................306

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We do not have Obama judges or Trump judges, Bush judges or Clinton judges. What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.
Chief Justice John G. Roberts, Jr.1


I. "The Intelligent person on the Street"

On November 20, 2018, President Donald Trump publicly accused a federal district judge of ruling against a component of the Republican Administration's asylum policy because he was "an Obama judge."2 In response, Chief Justice John Roberts took the unusual step of issuing the statement quoted in the epigraph above. It is not difficult to understand why. The President had condemned other federal judges before3 and his criticism on this occasion came on the heels of then-Judge Brett Kavanaugh's extraordinarily bitter Supreme Court confirmation hearing, during which the nominee sparred angrily with Senate Democrats on national television.4 A few months before those headline-seizing exchanges took place, the Court concluded a Term during which, in "major cases with clear political overtones, an extremely reliable indicator of what side a justice would come down on was whether he or she was appointed by a president with an 'R' or a 'D' behind his name."5 At about that same time, a Quinnipiac national poll revealed that 50% of American voters—including 57% of those between the ages of 18 and 34—believed the Supreme Court was "mainly motivated by politics" rather than "the law."6 Not long before that,

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Senate Republicans refused to consider Democratic President Barack Obama's nomination of Merrick Garland, then-Chief Judge of the D.C. Circuit, to fill the vacancy resulting from Justice Antonin Scalia's death; Republican leaders kept the seat open, hoping (as proved true) that a member of their own party would win the 2016 presidential election and thereby obtain the nominating power.7 Chief Justice Roberts thus had ample reason to fear that the American public increasingly scoffs at the notion that federal judges carry out their work in a nonpartisan fashion.

The Chief Justice's concerns had been on display a year earlier during the oral argument in Gill v. Whitford,8 a case concerning partisan gerrymandering in Wisconsin. The Democratic voters challenging Wisconsin's Republican-favoring electoral maps had proposed a statistical formula for marking the point at which partisan gerrymandering becomes constitutionally impermissible, but the Chief Justice wasn't buying it. The plaintiffs formula, he said, seemed like "sociological gobbledygook."9 He feared ordinary citizens would react the same way and would simply attribute the Justices' rulings in partisan gerrymandering cases to partisanship among the Justices themselves:

We will have to decide in every case whether the Democrats win or the Republicans win . . . . And if you're the intelligent man on the street and the Court issues a decision, and let's say, okay, the Democrats win, and that person will say: 'Well, why did the Democrats win?' And the answer [under the formula proposed here] is going to be because EG was greater than 7 percent . . . . And the intelligent man on the street is going to say that's a bunch of baloney. It must be because the supreme Court preferred the Democrats over the Republicans . . . . And that is going to cause very serious harm to the status and integrity of the decisions of this Court in the eyes of the country.10

Embracing Chief Justice Roberts's suggestion that we take seriously the perceptions of the intelligent person on the street, I focus here on a morality-laden concept that frequently appears in popular discourse about the work of

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government officials—the concept of hypocrisy.11 The Justices themselves are often accused of hypocrisy when critics believe the Justices have behaved as political partisans, voting in service to their political loyalties rather than in service to impartial justice.12 Those accusations pose a serious threat to the Court's legal and sociological legitimacy.13 Yet among scholars and others, one finds a remarkable lack of clarity about what hypocrisy is, the forms it can take, and the moral precepts that define its boundaries. As a result, participants in public discourse about the Court can easily find themselves talking past one another. To be assured that the Justices are not hypocrites with respect to their commitment to impartiality, for example, is it sufficient to be persuaded that the Justices are not trying to deceive us when they say they do not think of themselves as mere politicians in robes, or is more required?

I aim to bring us further down that road here. In Part II, I offer a conceptual framework for thinking about hypocrisy of all sorts and why we find it morally objectionable. I argue that, in legal and nonlegal settings alike, there are three principal types of hypocrisy—Faking Hypocrisy, Concealing Hypocrisy, and

[Page 256]

Gerrymandering Hypocrisy14 —and I identify the anti-equality thread that runs through all of them.15 In Part III, I apply that conceptual framework to the conversation about the Court and its legitimacy. Focusing primarily on the Justices' claimed commitment to impartiality,16 I point out reasons why that commitment is a matter on which the Justices are especially vulnerable to skepticism.17 I then discuss the issues that are in play when the Justices are accused of the three principal types of hypocrisy.18 I explain, for example, that while bias-claiming charges of Faking and Concealing Hypocrisy both entail the claim that the Justices are trying to dupe the American public into believing they follow what they impartially perceive to be the law's demands, the Justices may be guilty of Gerrymandering Hypocrisy even if (as Justice Neil Gorsuch put it during his Senate confirmation hearing) the answers they provide "are always the ones [they] believe the law requires."19 In Part IV, using the Justices' handling of the Court's own precedent as an example, I briefly explain how concerns about hypocrisy can arise even when issues of impartiality are not at stake.

II. Hypocrisy's Fundamentals

To call someone a hypocrite is to deploy "one of the most common forms of moral censure in the contemporary world."20 When convincingly prosecuted, it can be a powerfully delegitimizing charge, because the person who commits hypocrisy has called into question his or her authority to make normative judgments worthy of others' respect.21 What's more, hypocrisy is a freestanding moral allegation, in the sense that you can accuse someone of hypocrisy even if you do not embrace the norm about which you believe the person has...

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