JUDGING 'UNDER FIRE' AND THE RETREAT TO FACTS.

• Author: Larsen, Allison Orr

ABSTRACT

Americans tend to worry about how our current polarized political climate will affect the legitimacy of our courts. Often overlooked in this important conversation is a discussion about what a toxic political dialogue can do--and in fact is doing--to the construction of the law itself. This Article will begin to make the case that judicial decisions themselves change as a result of high-intensity politics. Specifically, I will argue that when judgesare "under fire" (to borrow a phrase from Planned Parenthood v. Casey), they tend to cloak their decisions in factual observations about the world that seem neutral and objective, even if that neutrality is an illusion.

To build my case, I draw lessons from a comparison with judges in a sister country also plagued with an epic political gridlock--the United Kingdom. I will make several observations stemming from this comparison, and then I will tie them together in a plausible explanatory story. I claim that (1) American law is anchored in factual claims about the way the world works that is very different from judicial decisions in the United Kingdom; (2) U.K. judges have long been protected from public accusations of acting "political" in a way American judges have not; and (3) these two observations are related.

An important consequence of a culture that throws political mud on judges, therefore, is that judges will shield themselves from it by anchoring their decisions in "neutral" claims of fact. Thus, the Voting Rights Act is dismantled because of factual evidence (laid out in graphs and charts) that voting patterns have changed over time. Campaign spending is protected by the First Amendment because there is no factual "evidence on the record" that it causes corruption. Even older cases penned when the Justices knew the nation was watching critically (Roe v. Wade and Brown v. Board of Education) rest their rationales on factual claims about the way the world works. Put simply, American judges are using facts as shields from accusations that they are behaving politically, and there is every reason to believe this trend will increase as the need to protect themselves continues.

TABLE OF CONTENTS INTRODUCTION I. TWO DIFFERENT HISTORIES OF JUDICIAL FACT CONSUMPTION II. JUDGES "UNDER FIRE"--A FURTHER COMPARISON III. FACTS AS SHIELDS: IMPLICATIONS FOR DOCTRINE A. Citizens United v. FEC B. Roe v. Wade C. Shelby County v. Holder D. Brown v. Board of Education CONCLUSION INTRODUCTION

Two countries with a shared heritage find themselves in epic political moments at the exact same time. In 2016, both the United Kingdom and the United States held momentous elections (voting to leave the European Union and to elect President Donald Trump, respectively). (1) Each decision left citizens bitterly divided along battle lines so interwoven with questions of national identity that people seem to be forever entrenched and hopelessly partisan. (2)

Judges in both countries have been pulled into the political mud. In the United Kingdom, a Supreme Court decision that any exit from the European Union must go through Parliament was met with cries that the courts were stealing the Brexit decision from the people. (3) In the United States, after a bitter confirmation battle that only united the country in feeling divided, President Trump and Chief Justice John Roberts publicly traded barbs over the independence of what the President dubbed "Obama judges." (4)

There are important differences between the way judges are viewed in the United Kingdom and the way they are viewed in the United States. Reflecting on those distinct norms leads to important insights. Consider the fact that following the judicial-Brexit backlash came a subsequent reaction in the United Kingdom--a concern that criticizing judges was out of bounds and dangerous for the rule of law. (5) Viral tweets from Britons indicated a sense of outrage but not the sort of outrage an American would expect: (6)

* "This is getting completely out of hand. If The Daily Mad speaks of Judges as enemies of the people, democracy is being undermined. Shame!"; (7)

* "Today's a bad day for the constitution[.] Not because of #Brexit case but attacks on independent judiciary & rule of law"; (8)

* "Ignore anti-judge venom in tomorrow's press, and give thanks for an independent judiciary upholding the principles of our democracy[.]" (9)

The notion that the judiciary must be protected from "anti-judge venom" likely seems very foreign to Americans. We are quite accustomed to seeing judges criticized in the news. (10) Leaders from both political parties take their fair number of shots at judges who issue decisions with which they disagree. (11) It is indeed quite common to see American academics and journalists referring to the Justices "as politicians in robes" (12) and poking fun at the notion that the jurists are distinct in any way from their ideology. (13) Even the President of the United States is not shy to express displeasure with what he calls "ridiculous" decisions of "so-called judgejs]." (14)

President Trump's language may sound extreme, but the sentiment behind it is not new. Indeed, in the United States, "[j]udicial rulings are criticized all the time, and by all manner of people." (15) As commentators from the Brennan Center put it, "Judges aren't immune from pointed criticism. Like it or not, they are part of our political system." (16) Judges in America are, perhaps now more than ever, "under fire." (17)

The goal of this Article--and indeed the theme of this symposium--is to think critically about what it means to decide a case "under fire" (a phrase I borrow from the Supreme Court in Casey as it discussed the importance of stare decisis when judging under pressure). (18) My analytic tool is a comparative lens. Because our cousins across the pond find themselves in a similar divided political moment, but the norms of judicial criticism are quite different, it is helpful to use the comparison to explore these issues. I recognize, of course, that the variations between the two legal systems are great, and in many ways, I am not making an apples-to-apples comparison, although recent events indicate greater parallels between the two systems than existed before. (19) Nonetheless, sometimes it takes a comparative perspective to reveal important facets of one's own legal system. In the words of H.L.A. Hart, "[TJhere are important aspects of even very large mountains which cannot be seen by those who live on them but can be caught easily by a single glance from afar." (20)

In that spirit, I offer the following three observations in this Article: (1) American law is infused with factual observations about the way the world works in a way that is very different from decisions made by judges in the United Kingdom; (2) U.K. judges have long been protected from public accusations of being "political" in a way that American judges have not; and (3) these two dynamics are related. The implication of these three observations is to suggest one explanation--though certainly not the only story--as to why U.S. law is "facty" in a way that is somewhat unique around the globe. ("Facty" is a word I coined and that I will definitely try again to make mainstream.) (21)

Using four examples from across time and subject matter, I argue that U.S. judges (unlike their British brethren) feature facts in their decisions in part as a defensive move to shield themselves from political backlash. Thus, Justice Harry Blackmun--who famously spent a summer researching abortion procedures and then wrote Roe v. Wade steeped in those facty observations--kept newspaper clippings with Gallup poll numbers in the case file and made notes each time the Court was criticized on the abortion issue. (22) Or Justice Anthony Kennedy wrote Citizens United v. FEC in empirical terms--using facty language to discuss the evidence (or lack of evidence) of corruption caused by campaign spending--against the backdrop of sustained criticism and accusations of judicial activism lodged at the Court. (23) Roe and Citizens United are, I submit, highprofile examples of the Justices using "facty shields" in their rationales while deciding a case "under fire."

Why would judges do this? Why retreat to facts when afraid of backlash? Are our judges really so thin-skinned? I fully admit that answering those questions involves a healthy dose of speculation into what motivates judges, which is always a dubious enterprise. But this is where the comparison to the United Kingdom gives important perspective and payoff. Remember that the general mudslinging over judges in the United States (the "anti-judging venom" that the United Kingdom tries to avoid) is a particular form of criticism: the accusation is that judges are acting politically rather than judicially, (24) The old accusation of "legislating from the bench" looms large in the United States. (25) In this environment and in the face of such criticism, there is something very comforting about a retreat to facts. Rather than directly announcing philosophical or normative commitments, the judge or Justice is just announcing the facts in a "neutral" way. Applying general principles to facts is, after all, in the core of the judicial role. (26) The allure of factiness, therefore, is that the Justices are merely calling things like they see them. This "just the facts, ma'am" strategy is attractive because it appears judicially modest ... even if it is not.

A few important disclaimers are needed in order to establish the scope of this Article. Although I have chosen high-profile examples, I do not mean to imply that it is only in those cases where U.S. law is fattened with factual authorities. Indeed, as I have said before, I think the facty turn in the United States incorporates far more than just the marquee end-of-June cases (although I do think the end-ofJune cases are particularly prone to the facts-as-shield dynamic). Nor do...