Stand in support of an independent, co-equal judiciary

Issue April 2004 By Richard C. Van Nostrand

The body politic is formed by a voluntary association of individuals: it is a social compact, by which the whole people covenants with each citizen, and each citizen with the whole people, that all shall be governed by certain laws for the common good. It is the duty of the people, therefore, in framing a constitution of government, to provide for an equitable mode of making laws, as well as for an impartial interpretation, and a faithful execution of them; that every man may, at all times, find his security in them.

It is essential to the preservation of the rights of every individual, his life, liberty, property, and character, that there be an impartial interpretation of the laws, and administration of justice. It is the right of every citizen to be tried by judges as free, impartial and independent as the lot of humanity will admit.
- Constitution of the Commonwealth of Massachusetts

Three recent events, two involving potential amendments to the Massachusetts Constitution and a third being a renewed attack on the judiciary by the United States Chamber of Commerce, remind us that as lawyers we must be ever vigilant in our efforts to protect judicial independence. Although very different, these three events conjoin with respect to the role of our third branch of government.

First, the same-sex marriage debate has been brought to center stage by the Supreme Judicial Court's Goodridge v. Department of Public Health and Opinion of the Justices decisions. Many local and national commentators roundly criticized the court for its purported "judicial activism" in these two decisions. On the court itself, the dissent was pointed in its view that the issue was one for the people and their representatives to decide, not the court. Furthermore, calls for the impeachment of the four justices who joined in the majority, which may have otherwise gone unreported, have been given newsprint and air time because the underlying issue is so charged.

Second, although unrelated to the court's same-sex marriage decisions, the agenda of the Constitutional Convention also contained an amendment calling for popular judicial elections. "Judicial accountability" was the purported rationale for changing our system of lifetime appointments of judges. Undoubtedly, the desire was to make the judiciary more responsive to (more fearful of?) the public hue and cry when it came to making decisions that might be considered unpopular.

Third, the Chamber of Commerce has again thrown itself into this arena. In recent newspaper ads and on its websites, the Chamber is again attacking the legal system and the judges who serve it, because of what it views as "abuses of the class action system, including the filing of frivolous suits." It sees these abuses as "costly to businesses and consumers." To support its argument, the Chamber cites a dubious opinion poll, which the Chamber itself commissioned, that "reports" that lawsuits cost the nation $809 per year per person.

Whether one agrees with the court's Goodridge decisions or whether one is attracted by the Chamber's mantra that too many lawsuits are filed, as legal professionals we should agree that tearing down our current system of judicial appointment and replacing it with the popular election of judges would have a significantly deleterious effect on the quality of justice delivered by our courts. The national experience has shown that such a proposal will have an effect opposite of that intended. In other states, public confidence in the judiciary has declined, as judges, instead of being appointed based on their legal experience and background, have been elected solely based on their political skill and fundraising prowess.

As the experience of other states with elected judiciaries has shown, citizens do not believe in a system when it is perceived as being influenced by politics and campaign contributions. A 2001 American Bar Association report on public confidence in the judiciary cited a Texas Supreme Court survey that found 83 percent of Texas adults and 79 percent of attorneys believed that campaign contributions influenced judicial decisions "very significantly" or "fairly significantly." The most compelling statistic reported that 48 percent of judges surveyed indicated that campaign contributions had an impact on judicial decisions.

In addition to the ill effects on the public's confidence, the influence of special-interest money in judicial campaigns is pervasive. According to a 2001 article in Capitol Eye, the U.S. Chamber of Commerce spent nearly $7 million in five states to oppose judges that did not support its political agenda.

We invest in our judges, particularly those at the highest appellate level, the right as well as the responsibility to recognize the dynamism of our evolving society. They should not fear job loss for fulfilling that responsibility. Our state and federal constitutions are living documents and cannot be relegated to permanent and exclusive interpretations. Our constitutions must be permitted to breathe, otherwise as a society we will stagnate.

"Judicial activism" is oftentimes the battle cry used by those resistant to that evolution (or perhaps more correctly, those who disagree with the allegedly "activist" decision). They denounce the "activist" judiciary as a scourge of which we should rid ourselves. Unfortunately, the stated remedy is to attack the messengers rather than to reflect upon the progress of our rights, freedoms and liberties and assess whether the boundaries have been re-established in the proper place.

It is extremely important for our profession to resist these attacks and stand united in support of an independent judiciary and a co-equal judicial branch. The alternative is not a very palatable one. Paraphrasing Supreme Judicial Court Chief Justice Margaret Marshall in recalling her experiences in South Africa, civil liberties are like oxygen - you don't notice them until they are no longer there. Attempts to cripple the independence of our judicial system, the protector of the rights of us all, may very well have us gasping for air in the not-too-distant future.