UNDER THE MICROSCOPE: This week, a single Florida judge decided for the nation whether the federal government’s rule requiring masking on planes during a pandemic was appropriate and lawful.  The outcome seemed predictable once the judge was selected. Life Detective looks at how a lack of faith in court impartiality threatens our “nation of laws” and the United States’ status as “ONE nation, under God.”

This week, a federal court judge decided a lawsuit and voided the CDC (Center for Disease Control) rule requiring mask wearing on US passenger flights. The issue of whether mask wearing on planes is a scientifically valid method to prevent COVID spread was not specifically decided. Rather, the judge decided that the agency lacked the authority to make the rule under the enabling statute, spending pages discussing why mask wearing was not part of “sanitation” which the agency could regulate. Furthermore, the Judge concluded the agency had failed to follow a proper rulemaking process, which includes a public notice and comment period, as required by the law governing federal agencies practice and procedures.

The Perceived Political Bias of Judges

The first thing I did when I heard the decision was to research the Judge to see who had appointed her. As expected, she was nominated by a Republican (Trump). Does anyone think the ruling would have been the same if it were decided in San Francisco by a judge appointed by a Democrat? Well, only 16% of Americans believe that the Supreme Court does good job of keeping their political views out of their decisions. So why would it be different in this or any other case? I imagine the very same might have entered the minds of the lawyers who, if they had options, would choose to file this type of case in a federal court with mostly conservative appointees (the Middle District of Florida), with appeals going to a majority conservative appellate court in Atlanta. If I were the attorney, I would do it, too!

Lady Justice Unmasked

In the image of Lady Justice, her eyes are covered with a mask. The blindfold symbolizes impartiality and objectivity, the sense of fairness to one and all. This is a “big ask” of judges. In fact, one of the leading theories of American jurisprudence says that judges arrive at decisions first, then create the legal reasoning to justify the decision. Known as Realism, this theory does not necessarily mean judges are always wrong, but rather Realists understand that judges bring with them their own education, political affiliations and beliefs, temperament, and life experiences to their decisions. Realism as a theory finds support from a comparative analyses of court cases, finding that judges commonly make different decisions in cases despite amazingly similar facts. Along the same lines, political affiliations and beliefs appear to have a large impact on decisions in the present, most notably in cases that overlap with leading political issues.

Analysis of the “unmasking case” does not lead one to conclude that the Judge did anything improper, though some analysts believe the decision was based on poor legal reasoning.  Instead, the case may serve as just the latest example of why lawyers commonly believe the choice of forum, and the judge assigned to the case, affects outcomes. Beyond legal insiders, Americans generally believe that our highest  judges lack impartiality by using political beliefs in their decision making. In the end, this impairs our nation’s faith in the rule of law and, in turn, impairs our ability to operate and maintain this nation.

Change is needed. Federal judges at all levels should NOT be appointed for life. Judges should be selected in some way that is proportionate to the demographics and political beliefs of the population. In individual cases, there should be more randomness in judge assignments, perhaps even selecting panels of judges from across circuits (states and regions) to reduce forum shopping by attorneys and hopefully achieve more consistency in outcomes.

As I ponder the relationship between a lack of faith in the rule of law and incidences of civil unrest on both ends of the political spectrum, I sought out clarity from the sage words of my favorite law school professor and jurisprudence scholar Samuel J.M. Donnelly who wrote:

When citizens can bring disputes concerning rights to court rather than fight in the streets, the rule of law is enhanced. Respect for rights and the rule of law are likely to make a government more acceptable and hence more legitimate.”

In short, we need more faith in the rule of law to augment our government’s legitimacy. It may be essential to preventing more dissension and civil unrest, preserving our fragile democracy, and remaining “one nation, under God.”