Section Review

The independence of the judiciary

Robert F. Drinan, S.J. was the dean at Boston College Law School from 1956 to 1970 and a member of Congress from Massachusetts from 1971-1981. In the 1960s he was the chairman of the Committee on the Administration of Justice of the Massachusetts Bar Association and a vice president of the MBA. He was awarded the Gold Medal of the Massachusetts Bar Association in 1968. He is now a professor at Georgetown University Law Center and the founder and faculty advisor of the Georgetown Journal of Legal Ethics. He delivered the following address to superior court judges of Massachusetts at the Endicott Conference Center in Dedham on April 29.
I love to quote those wise and majestic words of the Constitution of Massachusetts to the effect that judges should be "as impartial as the lot of humanity will admit." The objective of that goal is, in the words of the same constitution, to bring about "a government of laws and not of men."

Before reflecting on the independence of the bench it is appropriate to talk about the dramatic changes that have come to the bar and the bench over the last 30 years. The legal profession has doubled in number over the last generation. There are now more than 1 million licensed lawyers in the United States. About 800,000 practice law in the traditional manner. Some 410,000 lawyers are members of the American Bar Association.

These lawyers have received the best legal education ever available in U.S. history. Each June some 45,000 new lawyers graduate from the 178 accredited law schools in the country. These lawyers are roughly 50 percent women, 10 percent African-American and are more diversified than ever before.

They also have more training in legal ethics than ever before in U.S. history. The shock of seeing 28 lawyers in the Nixon administration jailed or disciplined prompted the American Bar Association to require a course in legal ethics for every new attorney. More than 30 states now require that the mandatory continuing legal education in those jurisdictions contain an element of legal ethics. The states also now have the best system in American history to discipline unethical lawyers and to indemnify their victimized clients.

The American Bar Association's Code of Judicial Conduct updated in 1990 is now being revised again. It is fair to state that the present time is the golden age of legal ethics. The Canons of Ethics adopted by the American Bar Association in 1908 were substantially rethought in the 1969 Model Code and again updated in the Model Rules of 1983. In 2002, many of the recommendations made by Ethics 2000 were agreed to by the American Bar Association.

In recent years, the bar in Massachusetts brought glory to the commonwealth by its adoption and modernization of the Model Rules of the ABA. The Massachusetts Rules of Professional Conduct are clearly one of the nation's most thorough and sophisticated codes of legal ethics in the country.

But the vast improvement in recent years of the ethical standards of the bench and the bar in the United States must not blind us to the desperate need for improvements in the administration of justice. Here are some areas that need reform.

Legal services funding

Only 25 percent of persons who receive low or moderate incomes get the legal aid on the civil side that they need and deserve. The federally funded Legal Services Corporation came out of my subcommittee in the Congress in 1974. The annual sum appropriated is now around $320 million but this is very inadequate. The inability of the millions of people to get the assistance of a lawyer for such basic legal needs as evictions, divorce or government benefits undoubtedly contributes to the negative feelings about law and lawyers which sadly permeate the population.

The ABA has quite literally saved the Legal Services Corporation from extinction. The Reagan administration beginning in 1981 each year zeroed out the appropriations for the Legal Services Corporation. With strong lobbying and the assistance of the ABA and countless law firms the budget of the Legal Services Corporation has been preserved.

However there is still a widespread need for lawyering for persons of modest income. It is time for the legal profession in the United States to examine the situation in England where every person with a clear need of legal services will be granted a lawyer without substantial cost to the client.

Prison population

History will surely recall that one of the worst mistakes - even scandals - of the legal profession in this generation is its tolerance of the vast number of Americans who are now in jail. That number now - now 2.1 million - has quadrupled in the last 20 years. The U.S. prison population is larger absolutely and proportionately than the jail population of any other country in the world. It is amazingly expensive. Some 60 percent of the inmates are recidivists. More than 50 percent of all prisoners are African-Americans.

Statistics do not show that the massive incarceration has caused a decrease in crime. There are many reasons for the slight decrease in crime since America has become obsessed with incarceration. The economy is better so that there is an increase in the number of jobs available. But even if one can argue that crime has diminished because so many people are in prison one must contemplate the cruelty and the injustice done to so many who have been imprisoned for very minor offenses.

Supreme Court Justice Anthony Kennedy received a standing ovation at the annual meeting of the American Bar Association in San Francisco in August 2003 when he said that too many people are in jail serving sentences that are too long. More recently Justice Kennedy, in testifying before the Congress, stated that "the mandatory minimum sentences by the Congress are, in my mind, unfair, unjust and unwise."

As a member of the House Judiciary Committee for 10 years I visited many federal prisons in exercising the oversight function of Congress. These prisons are now dreadfully overcrowded. Jails at the local level are even worse. Some states still use the term "correctional institution." In most prisons there is hardly anything that could be defined as "correctional." The theme is punitive and nothing else.

Judicial elections

The American anomaly of elected judges will almost inevitably soon break out into a scandal. Officials in the 38 states that elect judges know the shortcomings of a system that elects judges for a period of years.

The very idea of judges being elected is foreign to the lawyers and the citizens of Massachusetts. From the very beginning of this commonwealth, the authors of the Massachusetts Constitution followed the English system by which judges are appointed for life with a guarantee that they can be removed only for cause in an impeachment proceeding. Some years ago the people of Massachusetts voted to amend the constitution so that judges are now required to retire at the age of 70. I voted no on that proposition and still feel that it is an encroachment on the total independence judges should enjoy.

The Code of Judicial Conduct has, unlike the Model Rules for Lawyers, retained the standard that a judge must be subject even to the "appearance of impropriety." How can this standard be maintained, for example, if an elected judge knows that the plaintiff's lawyers has given $1,000 to his campaign, while the lawyer for the defendant has given nothing? If the judge decides for the plaintiff, the "appearance of impropriety" is undeniable.

The bench and the bar of America are continuously reviewing alternatives to elected judges. These individuals obviously have to raise money to use in their campaign to get elected or reelected. The literature about this topic is copious but it is not clear that any consensus on the issue is developing.

The lawyers and judges of Massachusetts have special insights that would be helpful in the resolution of one of America's toughest problems - what to do with the election of judges.

The independence of judges

In the recent past I visited the offices of the International Commission on the Independence of the Judiciary based in Geneva. Unfortunately this commission has experienced difficulty in raising the financing necessary to carry on its mission. This is an organization with precious value for judges and lawyers everywhere.

The concept of the independence of the bench is clear in theory. The judges of the world stand above the executive or the elected representatives. The judiciary is not beholden to or dependent on any elected officials or those whom they appoint to conduct the executive branch of government. The judiciary insists that both the elected and those who operate the government abide by the unchanging moral values embodied in the Constitution. In the United States, the idea of the independence of the judiciary is perhaps more clear than in most places on the earth.

Unfortunately the judiciary has not always lived up to its duties to be independent. In Argentina, for example, the judges abdicated some of their power to the military, which seized power from 1976 and retained it until 1984. On the other hand, the judges in Chile resisted the encroachments of Pinochet during his dictatorship; the judges helped to restore the long-held traditional respect in Chile for the rule of law.

The new judiciary appointed in South Africa after their liberation brought glory to that nation and to the entire world. A new court of 11 persons has applied the moral and legal principles of Anglo-Saxon and world jurisprudence in ways that has inspired the world. The tribunal's unanimous condemnation of the death penalty used basic principles of national and international law to discard capital punishment, which had, of course, been ruthlessly applied by officials in South Africa before its emancipation.

Judge Abner Mikva said it well. As a member of Congress, a federal appellate judge and counsel to the president and the White House, he understood the crucial and central role of the judge. Listen to Judge Mikva:

Judges must follow their oaths and do their duty, heedless of editorials, letters, picketeers, threats, petitions, panelists on talk shows. In this country we do not administer justice by plebiscite.

The independence of the judiciary assumes that there are rights that cannot be denied, taken away or abridged. The executive and legislative branches of government may try to diminish these rights but they are imprescriptable, precious and non-derogable.

Courts have the duty of preserving those sacred rights from the tyranny of the executive, the dominance of strong views and the hysteria of majorities. DeTocqueville in the 1830s noted that it was the legal profession in American that calmed the people and reasserted the rule of law when the public was carried away by its intoxication with the temporal, the fleeting and the transitory ideas of the majority.

There has always been in Massachusetts a deep feeling for the rights of the oppressed and of minorities. This deep desire for justice was present in the rebellion against tyranny in the struggle of Concord and Lexington, in the Boston Tea Party and in the Boston Massacre.

The deep desire for justice was present in the early beginnings of the abolitionist movement in America, which began around 1800. The struggle for equality became visible in Massachusetts early in the pleas for suffrage for women, which culminated in the constitutional amendment for women's suffrage in 1920.

These great moral movements derived from the conscience of the people of the Bay State. That spirit is deep within the history and the development of the legal profession in Massachusetts.

Lawyers have always been pioneers in America's struggle for equality. Thirty-three of the 54 authors of the Constitution were members of the bar. They created a document of 5,400 words that changed America and transformed the world.

It is this document along with the United Nations Charter in the Universal Declaration of Human Rights that have helped more than 100 nations to emerge as democracies from the ashes of colonialism.

The concept of the separation of powers was stated clearly and forcefully in the Massachusetts Constitution of 1780. It is this idea that undergirds the independence of the judiciary. It was this concept that led to the inclusion in the United States Constitution of Article III judges - individuals appointed for life with a guarantee of non-diminution of compensation.

The Constitution of Massachusetts was also the forerunner of these bedrock rights, which are so familiar. But they are also fragile. They include the right to confront one's accusers, to present evidence, to avoid double jeopardy and the right not to incriminate one's self. These are rights that are non-negotiable.

As the nation looks back on the 50th anniversary of Brown v. Board of Education we are reminded of the frailty and fallibility of judges, even those with life tenure under Article III. The Supreme Court tragically ruled in 1896 in Plessey v. Ferguson that segregation on the basis of race or color is permissible. The nation's highest tribunal finally reversed that ruling but the damage was done - damage that still continues in almost countless ways.

Today courts around the world as never before look to American jurisprudence for guidance. Jurists and lawyers know the monumental decisions of federal and states courts have expanded the horizons of equality for women, the disabled and the minorities. They see our glories but they are aware of our shortcomings. Jurists in Africa and around the world know that African-Americans make up only 3.2 percent of lawyers in America, although their population is 12.9 percent of all Americans. Lawyers everywhere know about the dangers in the anomalous situation that over 70 percent of all American judges are elected.

The 6 billion people on the planet are looking to the United States and its courts for guidance in the application of the norms and human rights that now more and more are legal norms binding on everyone. Our courts and the legal profession are in the eye of the storm.

The courageous decisions of the Supreme Judicial Court of Massachusetts since it was established in 1859 demonstrate that those who have served on this court have displayed conviction and courage in exemplary ways.

The preamble to the Code of Judicial Conduct reminds us that the "role of the judiciary is central to American concepts of justice and rule of law." The code also reminds us that "the judge . . . is a highly visible symbol of government under the rule of law."

The code also reminds us that "an independent judiciary is indispensable to justice in our society." The judge must carry judicial responsibility "with integrity, impartiality and competence."

In June 2002, a 5-4 ruling of the United States Supreme Court overturned a section of the 1972 Code on Judicial Conduct that said that a judge should not "announce his or her views on disputed legal or political issues." Justice O'Connor, the only formerly elected member on the Supreme Court, dissented stating that the legal profession has a right and a duty to require elected judges not to commit themselves on political issues.

The officials of the ABA are seeking to comply with that ruling. But accommodation to the majority view in that decision would seem to be an infringement on the right and duty of a judge to be impartial and independent.

The struggle for justice seems never to end. The evils that men do are beyond belief and comprehension. But law corrects and sanctions changes that curb the conduct of cruel and ruthless citizens.

Judges take an oath to search and work for justice. You judges believe ardently in the solemn preamble to the Constitution of Massachusetts by which citizens covenant with each other and with all the citizens of the commonwealth.

The fight for justice is one of the oldest challenges in the whole history of the world. And lawyers and judges are the architects and the soldiers of that struggle.

The war against injustice was described well in the Code of Hammurabi 2,500 years before Christ. Let me close with the definition of the rule of law put forth by Hammurabi:

"The purpose of law is to protect the powerless from the powerful."

©2017 Massachusetts Bar Association