CategoriesFlorida Law Review Forum
Professor Cassandra Burke Robertson’s outstanding article, Judicial Impartiality in A Partisan Era, is timely given the increasing politicization of the judiciary. The political debate and controversy around the Judge Garland nomination and the Justice Kavanaugh confirmation to the United States Supreme Court, only served to reaffirm that the judiciary is not immune from the growing political polarization in America. And it is not just senate judicial confirmation battles that have become highly bitter and partisan. Scholars writing about the substantive work of the Court have argued that it is more akin to a political body than a judicial one, and others have called for constitutional issues to be taken away from the Court. The recent spate of 5–4 decisions upholding President Trump’s immigration policies will further convince many people that Supreme Court justices are nothing more than politicians in robes.
To the extent that partisan bias is a problem, I agree with Professor Robertson that recusal is not the solution. Allowing potentially partisan judges to make their own recusal decisions will not instill public confidence in judicial nonpartisanship. I also agree with her that structural changes, including giving laypeople a greater role in the judicial process by restoring the power of the jury, are critical to rehabilitating confidence in judicial independence and impartiality. But in this short response I will highlight three important distinctions that Professor Robertson’s article elides, or at least blurs. All three distinctions challenge some of the suggestions in Professor Robertson’s piece, and all three are highly underexplored in the legal academic scholarship. Read More.