Tuesday, August 2, 2011

Judicial independence? Or infallibility?

I have been getting caught up on my past issues of Indiana Lawyer and I came across an article from June discussing the impact of unpopular decisions like Barnes v. State on the judiciary.  The article is called "Touched by Controversy: 'Unpopular' rulings, public outcry can test courts and judicial independence." Sigh!
In the history of court controversies, a recent ruling by the Indiana Supreme Court has created public outcry and calls for change in ways that few others do.

But it’s not alone.

The courts have faced a handful of issues through the years pitting judges against public opinion, from a federal ruling on school desegregation in the 1970s to the governor criticizing a ruling that struck down the state’s voter ID law as unconstitutional in 2009. Trial and appellate judges once faced common law liens on their property from people upset about particular decisions, and the judiciary has stood up to attacks from lawmakers and residents who’ve taken issue with a holding that’s seen as “unpopular.”

What’s most rare, though, is the heated response that leads to calls for judges and justices to be removed from the bench, and it’s in those moments where the legal community can test the strengths and find the failings in the Hoosier judiciary.

“Sometimes, these things create their own vortexes of controversy,” Court of Appeals Judge John Baker said, referring to his own experience handling a controversial case in the early 1980s. “That can spin out of control very quickly for a judge or the entire court.”
The article concludes with specific discussion of the Barnes case:
On May 12, a split Supreme Court issued a ruling in Richard L. Barnes v. State, No. 82S05-1007-CR-343, holding that a person must use the civil court process for redress against unlawful police action instead of trying to resist in any way. Justice Steven David wrote the decision, becoming the focal point for the public outcry that has followed.
National media attention zeroed in on Indiana criticizing the broad ruling, and in the week following that decision the state police were called to investigate potential threats made to the court by phone and email.

A “Stand Up for your Fourth Amendment Rights” rally drew about 300 people to the front steps of the Indiana Statehouse to protest the decision, and dozens made signs or banners displaying messages such as “Justice David is an Enemy of the Constitution” while others waved American flags and copies of the U.S. Constitution. A political action committee and a Facebook page have been created with the goal of recalling Justice David, who was appointed to the court last fall and will face an initial retention vote in 2012.

What happens next depends on the case and how long the public outcry continues.

Indiana University Maurer School of Law professor Charlie Geyh, a national expert on judicial independence, said the initial reaction could play into the final result, depending on what the court does next.

“Judges make tough decisions and this is a result of them having to make one of those on a tough issue,” he said. “If I was a member of the majority, I’d think long and hard about changing views even slightly because it might look like you’re caving because of the public response. Judicial independence could take a shot in the face even if it didn’t factor in, but it looks like it did. That puts this whole notion of rehearing in a more precarious position.”
Unfortunately, this article typifies the position most legal publications take on controversial decisions: if the public doesn't like a judicial decision, the problem is with the public.  Very rarely is there any consideration that the problem may be that the judicial decision is wrong, or that a particular judge may have a pattern of making such wrong decisions.  And of those rare criticisms of judicial decisions, almost all of them take place when the decision goes against progressive thought.

To be fair, in Indiana it's very hard to criticize sitting judges or their decisions.  The Indiana Code of Professional Responsibility practically prohibits attorneys from criticizing judges.  Most states have very similar prohibitions, although California, interestingly, does allow criticism of judges so long as it doesn't get into personal conduct or defamation territory. 

Also to be fair, such prohibitions, counterintuitively, are often intended to protect attorneys rather than judges.  If an attorney makes a very public criticism of a judge, that judge is likely to view that attorney very unfavorably, perhaps unfairly, and take it out on them in court.  It's impossible to prevent a judge from doing that because it's human and it's also impossible to prove.  Though the attorney could seek a change of judge, if enough attorneys have this problem with enough judges it could become an administrative nightmare.  So, to a point, the prohibition is understandable.

To a point. 

When I wrote my take on the Barnes decision, I had to be very careful for fear of criticizing Justice David.  The Indiana Supreme Court Disciplinary Commission is very strict about enforcing the prohibition.  I remember years ago when Jeff Modisett was Attorney General of Indiana, he was so angry at a court decision that he crumpled it up and tossed it in a trash can in front of reporters at a press conference.  Modisett got in big trouble with the Supreme Court Disciplinary Commission.  Most non-lawyers were, like, "WTF?"

And, to me, that's a problem.  Judicial independence, as Indiana Lawyer apparently understands it, was never intended to be judicial infallibility.  In fact, the judiciary was never supposed to be truly independent at all.  It was supposed to be co-equal with the executive and legislative branches.  Remember how the legislative branch makes the law, the executive branch enforces the law and the judicial branch interprets the law.

Many would argue that, unfortunately, that model has started fraying over the years, especially in the federal judiciary.  The federal courts have a veritable veto over any executive or legislative action by declaring it unconstitutional.  Not just illegal, but unconstitutional.  There's almost nothing the other branches can do to get around such a ruling.

And, over the years, some judges have abused that veto power.  William Brennan might be considered a lion and legal scholar in leftist circles, but in many other places he is believed to have abused his power on the US Supreme Court to further a political agenda that for the most part was neither wanted nor needed nor founded in existing law.  Brennan may have been a "pioneer," but a judge is not supposed to "pioneer." A judge is supposed to interpret the law as written.  If there is no clear interpretation, then and only then there is room for "pioneering,"

Many would argue that Brennan's behavior on SCOTUS may have helped destroy respect for and belief in a neutral judiciary.  The result is that today courts are hyper-politicized.  Liberals today argue that SCOTUS made a political decision unfounded in law in Gore v. Bush that gave the presidency in 2000 to George W. Bush.  Conservatives argue that the politicization came from a Florida Supreme Court determined to help Al Gore win the presidency by making up the law as it went along.

Now, don't get me wrong.  The US court system is the best in the world.  It usually gets decisions right.  And, because judges are human, they are not expected to be perfect.  But they were never intended to be the unanswerable philosopher kings of Plato, either.  The public has a right to question a judicial decision.

Unfortunately, when the people most qualified to question a judicial decision are prohibited from doing so, as in Indiana, it makes the legal community more insular, more detached from the public it is supposed to serve.  To much of the public, the legal profession looks like it is more interested in protecting itself than the public.  And that's a problem.

And it's getting worse.  There is a major push in the American bar to have all judges appointed, rather than elected.  At all.  To this movement, judges shouldn't even be up for retention elections, but should just hold power as long as they want.  The movement gained steam when the Iowa electorate decided against retaining several Iowa Supreme Court justices after those justices made an unpopular decision (albeit one with which I agreed) concerning gay marriage.  Many in the legal community were outraged when outraged voters removed Rose Bird and, much more recently, Louis Butler from their Supreme Court posts in California and Wisconsin, respectively.

Never explained is where the check on judicial power is supposed to come from.  Never explained is how judges who abuse their power are supposed to be removed.  Impeachment?  When was the last time a federal judge was removed for not following the law?

Never explained is why an unpopular decision should be cause for public introspection rather than judicial examination.

Never explained is why the first assumption of the legal community after an unpopular decision is that the public is wrong, rather than the judge.

Never explained is why admission of a mistake is good for one's humanity, but not for a judge.

Never explained is how the system they promote would differentiate judges from Plato's philosopher kings or the priest kings of Mohenjo-daro that are such an anathema to the American political system and its promise of freedom, liberty and self-determination.

Or how that would be good for our courts and our system of government.

No person, no profession, no position is infallible.  No person, no profession, no position is entitled to a presumption of infallibility.

The legal profession seems to believe otherwise. 

Perhaps that belief, by itself, is the biggest sign of fallibility.

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