Chief Justice John Roberts testified at his confirmation hearing that federal judges were like umpires calling balls and strikes: “Judges are like umpires. Umpires don’t make the rules; they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules. But it is a limited role. Nobody ever went to a ball game to see the umpire... I will remember that it’s my job to call balls and strikes and not to pitch or bat.” The Chief Justice also denied, after his confirmation, that federal judges could be known by the President who appointed them: “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.”
The Chief Justice had a wonderful idea, as Mahatma Gandhi said of western civilization. But the reality far is different.
The law is imprecise. The vast number of conflicting precedents make it easy for judges to smuggle their partisan prejudices into decisions in the guise of following the law. That is why forum shopping is commonplace. You give me the judge, I’ll get you the opinion. The prominence of judicial bias has soared as the number of federal judges has mushroomed to nearly 900 making mediocrity or worse the norm.
Take the pending medical abortion case of Alliance for Hippocratic Medicine v. U.S. Food and Drug Administration. Federal courts lack subject matter jurisdiction to adjudicate a case unless the plaintiff alleges a concrete present or imminent injury proximately of likely caused by the challenged conduct of the defendant. This is known as the doctrine of “standing.”
Notorious anti-abortion federal district judge Matthew Kacsmaryk found that medical associations had standing to challenge the FDA’s terms, conditions, and approval of mifepristone (no woman who had used the drug complained) because adverse reactions might tax the medical system causing doctors to feel “stress” during emergencies. But stress goes with the territory. A doctor should not be in ER if unable to deal with stress. It is not an injury but part of the job. Judge Kacsmaryk decreed otherwise in his zeal to attack abortion.
No patient complained about the lack of informed consent in taking mifepristone. The doctors also alleged injury, nevertheless, from the absence of even more informed consent if the FDA augmented its mandatory data collection of user experiences. The law, however, does not require super-consent from a patient but only consent. The absence of the former is not legally cognizable injury. Judge Kacsmaryk decided otherwise in racing to ban mifepristone.
The plaintiff medical associations were vintage interlopers. Women who allegedly has been harmed by the FDA’s decisions regarding mifepristone could have sued and maintained their privacy as Jane Does. The landmark abortion case of Roe v. Wade (1973) was brought under a pseudonym. But there were no women plaintiffs.
Stripped of obfuscations, the true gripe of the medical associations was the FDA’s approval of a drug that facilitated abortions was offensive to their moral or religious convictions. But philosophical anguish has never been cognizable in law as a redressable injury. Judge Kacsmaryk pretended to believe the case was about something else to assail the FDA’s regulatory handiwork and facilitation of voluntary abortions. The rule of men not the rule of law at work.
When judges act as politicians, they compromise the impartiality and integrity of the judicial system. By allowing personal convictions to guide their interpretations of the law, these judges may fail to maintain the impartiality expected of their role. This can lead to concerns about the fairness of the legal process and the erosion of constitutionally protected rights for women seeking access to safe and legal abortion services. Worrisome.