SALT LAKE CITY — The Supreme Court needed only two paragraphs to spark a national outcry with its Feb. 7 decision allowing an execution to proceed. The court's five conservative justices ruled that a Muslim inmate in Alabama could be put to death — even though a federal appeals court had said the state's policy allowing a Christian chaplain, but not an imam, to be present at the execution likely constituted religious discrimination.
Many Americans, conservatives as well as liberals, disagreed with the order, criticizing the court for ignoring the inmate's religious concerns. But they also disagreed on what motivated it, clashing over whether the justices were biased against Muslims or merely uncomfortable with Supreme Court interference in death penalty cases.
"I think the decision was appalling," said Robert Tuttle, a professor of law and religion at George Washington University Law School. If the case had involved a Christian prisoner, he said, "my guess is that all five justices would agree."
Luke Goodrich, vice president and senior counsel for the Becket Fund for Religious Liberty, rejected claims like this, tweeting that "this is a debate about the death penalty and how active the Supreme Court should be in the 11th-hour to stop executions."
The Supreme Court's order and the surrounding debate is part of a broader disagreement over how active judges are supposed to be, legal experts said. Judges have the power to block federal policies, determine what wins when human rights protections are in conflict and postpone executions, but when and how should they use it?
"Even among judges, there are different views about exactly what judges are supposed to be doing," Goodrich said in an interview.
That's evident when comparing high-profile decisions from the last two years.
Some judges have used nationwide injunctions to block the rollout of Trump administration policies related to immigration and birth control, a move critics have labeled "activist." But in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, last year's clash between a Christian baker and a same-sex couple, the Supreme Court chose not to answer the big question about what wins when religious freedom rights and LGBTQ nondiscrimination protections are in conflict.
Masterpiece "showed a kind of judicial humility," Tuttle said.
Amid partisan gridlock in Congress and state legislatures, the judicial branch is playing an increasingly prominent role in civil rights debates. Conservative and liberal advocacy organizations are seeking out judges willing to push their agenda forward rather than issuing narrow rulings.
Learning about how judges operate can help people better understand these trends, legal experts said.
"I think a lot of people see an outcome they disagree with and assume that whoever decided that outcome must be acting in bad faith or have bad motives. I think it's important to recognize that there's often more going on than we understand at first blush," Goodrich said.
What judges do
When you ask about a judge's job description, people often bring up baseball. They compare adjudicating a case to calling balls and strikes.
"Judges are like umpires. Umpires don't make the rules; they apply them," said Supreme Court Chief Justice John Roberts during his 2005 confirmation hearing.
The truth of that claim varies depending on context, Tuttle said. Lower-level judges typically are focused on establishing the facts of a case and ruling accordingly, but higher-level positions require more creativity.
"Cases end up at the Supreme Court because there is a conflict in how federal appellate courts have seen them. That means there is a degree of openness in the law," he said.
In other words, the Constitution and judicial precedent doesn't provide a clear answer, no matter how hard you look, said Fred Gedicks, a law professor at Brigham Young University.
"By the time a case makes it up to the Supreme Court, there are equally weighted arguments about whether something is a ball or a strike," he said.
Regardless of whether a judge serves a county courthouse or on the Supreme Court, he or she is expected to be unbiased, Tuttle said. Judges should focus on relevant facts in the case and try to drown everything else out.
"Good judging involves the ability to see things in a way that is not clouded by your own interest in a matter. It's difficult, but we try to require it," he said.
That's part of why reaction to the Supreme Court's decision on the Muslim death row inmate was so strong, he added.
"Imagine if (the case) involved a Christian litigant complaining that the Alabama statute excludes Christian ministers (from the execution chamber) and allowed those of other faiths in," Tuttle said, noting that he believes the ruling would change.
Overall, few analysts would claim that Supreme Court judges are neutral on the issues they consider, Gedicks said. They're predisposed to interpret the Constitution or previous rulings in a particular light. That's why it matters which president gets to appoint new justices and why confirmation hearings are so heated.
"If judges' personal views didn't have anything to do with decisions they made, then how is it that we're able to predict lineups of Supreme Court justices on high-profile cases?" Gedicks asked.
Even so, federal judges are not political in the same way that elected officials are. They serve lifetime terms, so they aren't trying to attract votes with their decisions.
"The idea is we actually don't want judges looking over their shoulder at what people will think of their rulings. We want them to be independent and exercise their own judgment," Goodrich said.
Wielding power wisely
Judges determine more than who wins and loses the cases they hear. They also decide the scope of their ruling, meaning how many people it affects and whether it establishes a broad new precedent, legal experts said.
The Supreme Court's order on the Muslim prisoner in Alabama is an example of a narrow ruling, as Ilya Somin, a law professor of George Mason University, noted in his analysis of it. Justices seemed focused on limiting last-minute judicial interference in death penalty cases, and they didn't address the inmate's religious freedom claims directly.
"The fact that the case was decided on technical procedural grounds probably ensures that it won't set a precedent that undermines religious freedom," Somin wrote.
Nationwide injunctions, on the other hand, which block a policy from taking effect while a case proceeds, represent a much stronger display of judicial power. By issuing an injunction last month, a U.S. district court judge in Pennsylvania blocked President Donald Trump's latest birth control policy, which would have allowed organizations with religious or moral objections to birth control to exclude it from insurance plans in all 50 states.
Even narrow rulings can have significant consequences, Goodrich said.
For example, the Supreme Court's 2017 ruling stating that a religiously affiliated preschool should have access to a Missouri playground safety grant, which included a footnote seeming to limit application to "playground resurfacing" cases, has been used in lawsuits about churches' access to disaster relief funding and religious schools' participation in textbook lending programs.
"You can always say your decision is limited to the facts, but there's a logic underlying every decision and that logic applies to future decisions," Goodrich said.
Most judges try to wield their power carefully, which is an instinct that can lead to unexpected outcomes, Gedicks said. He cited Roberts' 2012 decision to partner with the Supreme Court's more liberal justices to uphold the Affordable Care Act, which surprised many analysts.
"I think (Roberts) was thinking there had to be a really clear and unmistakable constitutional violation to set aside such a tremendous legislative accomplishment," and he didn't see one, Gedicks said.
In Masterpiece Cakeshop, seven Supreme Court justices seemed to agree that it wasn't the right time for them to create a guiding precedent in clashes between LGBTQ rights and religious freedom, Tuttle said. They wanted to give lower-level courts and even state legislatures more time to act.
"They'll let a variety of lower court rulings develop" and then maybe consider the question again, Tuttle said.
This kind of "judicial humility" is meaningful, since the Supreme Court's decisions are difficult to undo, he added. Congress has the power to circumvent a ruling, but that requires more teamwork and compromise than we typically see today.
"Most of the time, Congress doesn't act. Most of the time, the Supreme Court ends up having the last word," Tuttle said. Society benefits from justices who choose that word carefully.46 comments on this story
However, humility isn't always the right approach, and it wasn't in the Muslim inmate case, Gedicks said. Concerns about judicial activism shouldn't prevent judges from the right kind of interference.
"This wasn't a case where you're asking the Supreme Court to depart from calling balls and strikes. They were asked to call a strike a strike," he said. "It's like the Supreme Court decided to abdicate their umpire responsibilities. It was a close play at the plate and the umpire was on a coffee break."