False Equivalence Watch, Judiciary Edition

President Obama tried one kind of attack on judicial independence. The Republican candidates have been trying another. Both are bad -- but one is worse. 

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"Judge Upset By Obama Remarks Not Political," ventured an Associated Press headline Friday over a story about 5th U.S. Circuit Court of Appeals Judge Jerry Smith -- who, just days earlier, had undertaken the most overtly political act by a federal judge in years. Meanwhile last week, when President Obama spoke out briefly and inarticulately about the Supreme Court and the Affordable Care Act, many of the same officials who had remained mute for months while Republican presidential candidates threatened the federal judiciary with subpoenas and marshals howled in indignation.

Welcome to the False Equivalence Watch, Article III Edition, a spin-off of the political meme James Fallows has been focusing upon so well and intently for the past year or so here at The Atlantic. False equivalence, the media habit of giving equal weight to opposing arguments, was relevant recently on this legal beat when it came to reporting about the intransigence of Senate Republicans to vote even on those federal judicial nominees who have swept through the Judiciary Committee with bipartisan support. And now comes the kerfluffle over the president's "unprecedented" line and his purported attack upon the Court.

Just as there are substantive differences in the way Senate Democrats and Republicans have treated each others' judicial nominees in the past two decades (the figures don't lie), there are serious distinctions between what the president said last week and what leading Republican figures have been saying for months now about the federal courts. This is why an AP story which quotes one of Judge Smith's law clerks ("he is very careful to stay out of any political controversy," the fellow said), but which fails to mention the 5th Circuit's roguish behavior and reputation, does such a disservice to the public debate.

1. What does "the independence of the judiciary" actually mean? There are two main kinds of judicial independence. There is what some people call "decisional independence," which centers on the idea that individual judges or courts should be free from political pressure when they are deciding specific cases. And there is what some folks call "institutional independence," which centers around the idea that the judiciary as a whole should be free from too much political power and influence from the other two branches of government. From The Constitution Project, read this handy "Newsroom Guide to Judicial Independence."

2. What does this difference mean in the context of Smith v. Obama and Gingrich v. 9th Circuit? The president's remarks about the justices and the Care Act went mostly (but not completely) to "decisional" independence since they focused upon one court (the Supreme Court) and one dispute (over the federal health care law). The Republican primary attacks, on the other hand, went mostly (but not completely) to "institutional" independence since they focused upon limits to judicial authority which would transcend a single case.

3. Attacks on "decisional" independence should be, can be, and are more easily tolerated under our constitutional framework. It is a "decisional" attack to criticize a ruling, a legal standard, a precedent, a judge, an approach to oral argument, the writing habits of an appellate panel, a judge's extracurricular speeches and activity, and I'm sure a great many other things that go into the art and science of judging. We see this sort of criticism all the time, of course, and there is broad recognition and acceptance within the federal judiciary that such criticism, even when it is unfair or life-threatening, is the price of life-tenure and the First Amendment.

4. Attacks on "institutional" independence are more worrisome. By contrast, judges worry a great deal about threats upon their "institutional" independence. It's one thing to blast a judge or a court for issuing a particular ruling. It's another thing to ban a court from ever considering that matter again, or to require that judge to be hauled before Congress, or to threaten to de-fund the courts in retribution for legal decisions. Any "institutional" attack designed by politicians (the majority) to prevent judges from protecting individual rights (the minority) is especially concerning because such protections are the essence of the Bill of Rights.

5. Obama and Bush. The president last week said little more than what he said back in January 2010 when he criticized the same Supreme Court over its Citizens United ruling. And he said little more than what President George W. Bush said about judges back in November 2007. To their credit, neither Bush nor Obama focused upon "institutional" independence -- and Bush was wise enough, after Bush v. Gore especially, not to tag his remarks to a particular case. President Obama's problem last week was that he was so imprecise that he gave the false impression he had crossed over to an "institutional attack."

6 Obama v. Supreme Court. It was the first line of the president's speech last Monday that has gotten all the attention. Here's is what he said:

I am confident the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically-elected Congress.

Let me briefly parse it. The president was blasted for using the word "unprecedented," the idea being that that there is, indeed, some constitutional precedent that would enable the justices to strike down the Care Act. And he was blasted for using the word "extraordinary" because the Supreme Court, in fact, strikes down laws all the time, including some of the worst federal ones. I disagree with the criticism, but it's fair enough. Whatever else this language shows about the president and the Court, whatever it portends for the coming presidential campaign, none of this can reasonably be considered an "institutional" threat to the judiciary.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, a fellow at the Brennan Center for Justice, and Commentary Editor at The Marshall Project

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