“Judges have to have the humility to recognize that they operate within a system of precedent, shaped by other judges equally striving to live up to the judicial oath.”
— Chief Justice John Roberts
“All I can say is that with business and the interest of any party before me, I will consider and apply the law as it is written by Congress and informed by precedent.”
— Justice Sonia Sotomayor
This column is nominally about Neil Gorsuch, but it isn’t about whether Neil Gorsuch should be confirmed to the Supreme Court, nor about whether Merrick Garland should have gotten the same hearings Gorsuch is currently getting. Those are predominantly political questions. Rather, this column is about something that coverage of Judge Gorsuch’s confirmation hearings Wednesday pointed out about how we review the actions of judges at all levels of the judiciary.
On Monday and Tuesday of this week, Judge Gorsuch was asked repeatedly about stare decisis- the concept that once an issue is decided, the same court shouldn’t change its mind about that issue unless there is new evidence or new legislation or some other major change in the state of things (in other words, not just because there is a new judge or justice who thinks differently than his or her predecessors). He answered those questions in the same fashion that every Supreme Court nominee over the past 50 years has, including all eight sitting Justices.
On Wednesday, the U.S. Supreme Court unanimously decided Endrew F. v. Douglas County School District. It was a major educational rights case and the Court decision was unanimous, 8-0. The lower court decision that the Supreme Court overturned came from the 10th United States District Court of Appeals- the Court Gorsuch currently serves on.
Gorsuch was immediately asked about the Supreme Court decision during his confirmation hearings and the media understandably wrote about the case. But unless you were reading a legal blog, you almost certainly didn’t get any analysis of the legal underpinnings of the decision. What you likely saw were headlines like ‘Gorsuch thinks kids don’t deserve a good education’ or ‘Supreme Court unanimously says Gorsuch was wrong.’
The legal analysis missing there renders those headlines ridiculous. In 1982, the U.S. Supreme Court, by a vote of 6-3, decided Board of Education v. Rowley. Rowley was the first case to hold that a public school must provide a free and appropriate public education (FAPE) to all students, including those with disabilities.
But it didn’t provided a clear standard of what that means for students who are not in a regular classroom, because the student in Rowley was in a regular classroom. Thus, that was an issue the Court never had to reach.
About 15 years after Rowley, the 10th Circuit Court of Appeals came up with a standard to apply to determine if students who were not in regular classes were receiving a FAPE. This case was Urban v. Jefferson County School District and it was decided in 1996. In 1996 Neil Gorsuch was in private practice in a law firm in Washington D.C. He had absolutely nothing to do with the case that established the legal principle in question.
In 2008 a similar case came before the 10th Circuit. By that time, Gorsuch had been appointed to the federal bench. He applied the precedent from his court’s 1996 decision and the two other judges hearing the case with him concurred in his decision.
The case the Supreme Court overturned wasn’t even the one Gorsuch decided. It was an entirely separate matter from 2015 that Gorsuch wasn’t even involved in. Those two cases were decided by judges appointed to the 10th Circuit Court of Appeals by Presidents Reagan, Bush, Clinton and Obama and there were no dissents in either case.
Some of the mischaracterization of the Supreme Court decision was undoubtedly related to the fact that Gorsuch has a pending Supreme Court nomination and so there is political motivation to either support or detract from him. But this problem of evaluating the decisions of judges based upon whether we personally like the end result, regardless of the law, is not unique to this one case.
People who know that I’m a lawyer will often approach me and say something along the lines of ‘Can you believe the judge in that case only gave that guy five years in prison?’ And I’ll reply, ‘Did you know that five years was the maximum sentence for that crime?’ Invariably, they didn’t.
The problem is that while we know there’s a legal process to be followed, we also know that we personally want to see a particular outcome in a case, something that fulfills our sense of justice in that matter. But that’s not how we empower judges to act. Judges aren’t free to disregard the law and willy nilly impose any result they might like. The judiciary is but one of three co-equal branches of government. The law sometimes mandates that a judge reach a decision that they don’t particularly like either.
The 10th Circuit unquestionably got this legal issue wrong way in 1996. Congress could have acted to clarify the statute, but they chose not to. The Supreme Court could have taken the original case back in 1996 or the case Gorsuch decided in 2008. When the issue finally got to the High Court now, they clarified their 1982 decision. All U.S. courts will now be required to follow their lead, precisely because of those same rules of precedent and controlling authority.
