Elected and high government officials in the Trump administration attack judges constantly, on a personal level, thus encouraging members of the public to do the same.1 Social media rewards hostility and conflict and amplifies these attacks. Americans’ confidence in the judicial system has plummeted in recent years.2 Death threats against judges have become commonplace.3 What do about this? I have a suggestion that is easy to state but hard to do: stand up for judges.
When I say, “stand up for judges,” I mean that we should describe judges to others as nonpartisan public servants who are doing their best to decide cases under the law and the facts. For example: I believe that nearly all judges serving today, in federal and state court, are nonpartisan and independent. They value the goal of nonpartisan and independent judgment. They are not a blank slate with no views about how the world works, but they are trying to be open to logic, argument, and evidence. They want to use these tools to decide cases because that’s what justice requires and they assume that everyone will be better off if they do.
When the President and his administration denounce judges as deranged, radical, and dangerous, it hard to resist the urge to argue that all of these words apply better to him. But the goal is to persuade, not vent, and so I go back to advice I have given when teaching law firm classes on effective brief writing. When thinking about a target audience for advocacy, we should aim for the skeptical but persuadable person. Those who already agree, and those who never will, are not the target audience. In this context, the person we want to reach, directly or indirectly, is someone who thinks that maybe judges really are deciding cases on a partisan or political basis, but does not have a strong opinion one way or the other.
For highly-engaged followers of current events (aka the likely audience for this post), this target person may seem imaginary. But I suspect that most people have almost no idea what judges do, or at an even more basic level, why judges should not advance the objectives of one political party or leader. After all, they might say, if one political party has better values than the other, then society will be better served by implementing that party’s agenda. The problem with that idea is that partisan ideology is unrepresentative and implementing it would amount to minority rule. The compromises that produce law are more representative and more stable. That all may sound abstract, but the difference between rule of law and rule of leaders is stark.
When I was in law school, Justice Kennedy gave a lecture describing what it looks like when the erosion of judicial independence hits rock bottom and there’s nothing left but political power. He told a story about judges in Russia. When judges there needed to decide a case, he explained, a party boss might call them and tell them how to rule, which was “telephone justice.” In his telling, the Russian judges incredulously asked their American visitors, “You don’t have telephone justice in your country?”4 We do not. Telephone justice is the end stage of partisan control over the judiciary.
In the United States, judges do not work that way. There are thousands of judges all over the country, so a few are bound to be bad apples. But I think instances of corruption or deliberate privileging of partisan interests over law are so rare that it’s not really fair or reasonable to think about them when describing what judges here do. I have never met a judge who was dismissive of the high duty she or he had been given. Legal culture as I know it requires something like reverence for the office. Standing up for judges requires mentioning this type of experience, if you have it, to those who are open to it. This could be mean Facebook, or informal business interactions, or really any gathering where someone attacks judges as partisan and biased. It should not be excessively political to describe judges as nonpartisan.
Now here comes the hard part: what should we say about criticisms that do not come from the Trump administration, and are directed at conservative judges and justices? My answer is that, when trying to persuade people that judges generally are and should be nonpartisan, it is not helpful to argue that a conservative majority of the U.S. Supreme Court is doing Trump’s bidding as a matter of partisan favoritism. That argument tends to reinforce Trump’s basic theme that everything is politics and power and nothing is principle. It ain’t easy to regard umpteen shadow-docket rulings in the President’s favor as nonpartisan. But perhaps we can try, for the sake of persuading the people who would rather hear that judges across the political spectrum are equally capable of judicial independence. People in the “middle” seemingly do not want to hear that one side is more captured by partisan extremes than the other.
So here’s the ask: Instead of condemning judges as biased or irredeemably partisan, we should talk about why their rulings are wrong on the merits. Instead of calling someone naïve because they credit a judge’s oath of office, remember that we want every judge to take the same oath and mean it. If we affirmatively contribute to a culture in which it is widely assumed that judges’ words are hollow and partisan biases dominate, then we will inadvertently help to bring it about. That is, if too many lawyers argue that judges are partisans, the public will believe them, and elected officials will give up their search for nonpartisans. Let’s not do that.
When we can—and it won’t always be possible—let judges know that we understand that they are doing their best to decide cases without fear or favor, even when politicians are asking for favors and instilling fear. Let the public know that most of us working in this system believe that judges are pursuing the ideal of independent justice. And let all of them know that we will accept nothing less.
https://news.gallup.com/poll/653897/americans-pass-judgment-courts.aspx.
Justice Kennedy related this anecdote at NYU. Perhaps he told the story everywhere. An online search turns up a transcript of Justice Breyer and Justice Kennedy together recounting the story for an interview with PBS. https://www.pbs.org/wgbh/pages/frontline/shows/justice/interviews/supremo.html.