Associate Justice Neil Gorsuch, left, and Chief Justice John Roberts Jr., right, walk down the steps of the U.S. Supreme Court after holding an Investiture ceremony for Justice Gorsuch, on June 15, 2017. Photo: Diego M. Radzinschi/ALM

In just a few days, the U.S. Supreme Court begins its new term for 2019-20. The frieze across the top of its building proclaiming "Equal Justice Under Law" inspires litigants and their lawyers to believe that the merits of their cases, not the political predilections of the justices nor that of the presidents who appointed them will determine the outcomes of the litigation.

While attorneys and their clients may hope that partisan ideology will not be determinative, the reality may be closer to what President Donald Trump said late last year when he asserted that "Obama judges" were ruling against him, suggesting that politics may be influential in deciding cases, as political scientists and legal scholars have long asserted.

Legal and judicial neutrality is a cornerstone value in the United States. Advocating ratification of the Constitution, Alexander Hamilton in Federalist No. 78 expressed that view, declaring that the appointment process for federal judges, nominated for life by the president, subject to confirmation by a majority in the Senate, would grant them independence, denying them the power of the sword and purse. This independence, he added, would promote legal neutrality, ensuring judges would not simply be politicians with robes, but instead stand above politics.

Law school pedagogy, including the venerated Socratic method, reinforces this view, too. But instruction seldom, if ever, accepts that the correct answer to the outcome of a particular case may, in fact, be the ideology of judges or the composition of a collective tribunal that really decides who wins or loses.

Participants in the legal process generally refrain from mentioning political realities. This outlook during the height of the Brett Kavanaugh hearings for the high court a year ago prompted Chief Justice John Roberts to respond in a talk at the University of Minnesota, where he defended the Court's judicial and political independence.

The Chief Justice then doubled down a few weeks later, via the court's public information office after Trump railed against U.S. District Judge Jon Tigar of the Northern District of California. The president's wrath stemmed from the judge's ruling last fall in Barr v. East Bay Sanctuary Covenant, preventing the administration from restricting immigrant asylum claims only to legal points of entry. The judge's nationwide injunction has subsequently been partially overturned and rolled by back by a pair of rulings from the U.S. Court of Appeals for the Ninth Circuit and later by the U.S. Supreme Court.

At the time of Tigar's initial injunctive ruling, the enraged president derogatorily dubbed him an "Obama judge." Roberts responded: "We do not have Obama judges or Trump judges, Bush judges or Clinton judges … What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them." His remarks provoked the president, in characteristic verbal pugilistic fashion, to punch back, claiming that the chief justice did not know what he was talking about and that he, alone, was correct.

Trump May Be Right

However laudable the chief justice's defense and appeal to legal neutrality, the reality is that judicial decision-making may be closer to what the president asserted. Put another way: while impolitic, Trump may have been right and Roberts wrong on this one.

Dating back to the early 20th century, then-attorney and future Supreme Court Justice Louis Brandeis in his famous brief in the 1908 high court case, Muller v. Oregon, successfully cited social and economic facts and not simply hoary legal principles. His work and that of some academics initiated a study of law that moved it beyond formalism, pointing to the other factors impacting judicial decisions and the courts.

That work inspired Judge Jerome Frank of the U.S. Court of Appeals for the Second Circuit, whose 1930 book "Law and the Modern Mind" launched the field of legal realism, which viewed judges' race, religion or other personal characteristics in determining decisions.

Political scientists, including Glendon Schubert in his 1965 book, "The Judicial Mind: The Attitudes and Ideologies of Supreme Court Justices, 1946-1963," ushered in what is called the attitudinal model to describe judicial decision-making. He and others developed a system of coding high court decisions to analyze statistically judicial ideology and other factors as strong predictors of certiorari selection and decisions.

What the Research Shows

Research that the partisan ideology of the president appointing federal judges is a good predictor of judicial voting patterns. While there are some notable outliers, they are exceptions. Since the 1987 Robert Bork confirmation hearings, presidents have become more strategic in vetting judicial nominees at all levels of the federal judiciary.

Proof of the awareness that who appoints and who serves on the Court matters is apparent in:

1. The refusal by the Republican-controlled Senate in 2016 to hold hearings on President Barrack Obama's nominee Merrick Garland,
2. The voting record of Supreme Court Justice Neil Gorsuch as a reliable conservative, and
3. How in recent years voting on court breaks down almost always predictably along ideology and presidential appointment.

That leads some to state: "Tell me who appointed a Justice, and I can tell you how she or he voted." With all the Republican appointments, Rhode Island Democratic Sen. Sheldon Whitehouse, in a recent Washington Post op-ed, pointed to how "From 2005 through the fall term of 2018, the Roberts court issued 73 5-to-4 partisan decisions benefiting big Republican donor interests." Ominously, the headline of that column stated, "The Supreme Court has become just another arm of the GOP."

As a new Supreme Court term starts, the evidence points to the reality that there are "Obama" and "Trump" jurists, notwithstanding the protestation of Roberts. Public approval of the Supreme Court is barely at 50%, and it is increasingly viewed as a partisan institution.

Perhaps the fiction of "Equal justice under law" needs to be believed to prop up the faith in the court. But the reality is that legal or judicial neutrality barely, if at all, exists and that the role of courts as political institutions ought to be recognized by law schools, students of the law and the legal profession.

David Schultz is a professor at the University of Minnesota School of Law and Hamline University, where he teaches courses on election law and professional ethics. Marshall Tanick is a constitutional law attorney with Meyer Njus Tanick in Minneapolis-St. Paul.