What the bench and bar should do for justice

This is the written draft from which Zel M. Fischer, Chief Justice of the Supreme Court of Missouri, delivered his address during the opening luncheon of the joint annual meeting of The Missouri Bar and the Judicial Conference of Missouri September 14, 2017, in Kansas City.1

 

President Cole’s introduction reminds me of the headline in Missouri Lawyer’s Weekly after I made the panel for the Supreme Court of Missouri – “Least Known, Most Likely.” I later learned, the paper’s editorial staff used as a working title, “Who the hell is Zel?”

One of the more serious issues facing our legal system is attacks on the judiciary, by those who clearly do not understand or do not care about the difference between accountability and independence. These attacks on the judiciary by those willing to criticize the courts for their own political gain involve rhetoric specifically targeted to undermine confidence in the judicial system or influence judicial decisions.

As lawyers, we have been taught to honor a fair and impartial judiciary that carefully decides cases on the facts and in accordance with the law. For us, a good judge is one who can set aside personal philosophy regardless of the controversy. A good judge is one who makes their decision based upon the facts in accordance with time honored principles of law.

The function of courts is one of the most important in our society. Courts are where justice is meted out, where remedies are administered, the innocent are exonerated, and criminals are punished.  

The courts are not just a place where judges and attorneys make their livelihood. Courts are living monuments to the preservation of our freedom, fairness, and justice that we hold so dear. President George Washington declared “the administration of justice – is the firmest pillar of government.”

Without courts that are capable of fairly adjudicating wrongs or addressing injuries, society’s sense of justice diminishes. When people no longer believe the society in which they live is capable of justice they are less likely to believe in – or follow – the law.

This concept may seem obvious to us, and it should. Neither individuals nor businesses feel safe when the rules are always changing, or when the rules don’t apply equally to everyone.

In 2012, I asked a law clerk to pull news articles of politicians criticizing the courts.

These quotes come from public officials elected to state or federal government, who we all know, have taken oaths to uphold the constitutions of the United States of America of their respective state. His search turned up the following results.

A Congressman said he would subpoena before Congress or seek to impeach justices he disagrees with.

Another Congressman said he would give voters the right to oust federal judges they didn’t like.

A Congresswoman said Congress could pass laws to prohibit courts from considering controversial issues.

A governor, who later ran for president, said he favored a constitutional amendment to give Congress veto power over the Supreme Court and end lifetime tenure for federal judges.

In a public statement preceding the Supreme Court of the United States argument challenging the constitutional validity of the Affordable Care Act, commonly known as Obama Care, then-President Obama stated: “Ultimately I’m confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress.”

Obviously, the politicians who made these comments were trying to influence a court’s decision or undermine its legitimacy.

In preparation of my remarks today, I gave my current law clerk the same assignment. Regardless of where you get your news, you probably aren’t surprised that politicians have continued to criticize our courts. Things are no better now, and arguably worse.

President Trump has criticized the process of courts, implying judges solely make decisions for political reasons. He said: “Just cannot believe a judge would put our country in such peril. If something happens blame him and court system.”

On the senate floor, during the nomination process of Judge Neil Gorsuch, who received the American Bar Association’s highest judicial rating available, a democrat senator used the public spotlight to instead criticize the Supreme Court of the United States:

Recent Supreme Court decisions have made it easier for corporate giants who cheat their consumers to avoid responsibility. Recent Supreme Court decisions have let those same corporations and their billionaire investors spend unlimited amounts of money to influence elections and manipulate the political process. And recent Supreme Court decisions have made it easier for businesses to abuse and discriminate against their workers.

These types of comments are not just made on the national stage.

This spring the Missouri Senate President Pro Tem told media he was upset with the Supreme Court of Missouri over recent decisions. He was widely quoted as saying the Court had “gone rogue.”

These disparaging comments have been bipartisan and relentless. The public officials who made these comments could learn from one of my father’s rules to live by: “The world works better when everybody just tries to do their own job well.”

With public distrust of governmental institutions at an all-time high, many public officials and individual citizens have called on the courts to make rulings that reflect not the applicable law and precedent, but rather the public opinion of the day – and publicly opposed those jurists who refused to compromise their sworn duty to uphold the law.

The public is increasingly being asked to hold judges accountable for the outcomes of specific cases, rather than the appropriateness of the process used to reach those outcomes.

Unfortunately, many seem to forget that democracy concerns itself not only with accountability of government to the majority will, but also with protecting the rights of individual citizens and political minorities.

A judiciary that is free from influence by those who wish to sway its decision-making process is a concept everyone ought to support, regardless of political beliefs or critical issues of the day. I am not surprised that, throughout history, the judicial branch has enjoyed a higher favorability rating than the legislative and executive branches. Could it be that in our society the judiciary is the only branch of government that is not perceived as being bought and paid for? Can we all agree that is a concept worth fighting for?

In 1788, Alexander Hamilton wrote about the importance of preserving the integrity and the autonomy of the courts. He explained:

Whoever attentively considers the different departments of power must perceive, that … the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in capacity to annoy or injure them. … The judiciary … has no influence over either the sword or the purse; no direction either of the strength or of the wealth of society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment ….

A court’s legitimacy does not depend on its structural prestige or the reputation of individual judges but on the strength of its published opinions, which can be read, debated, and analyzed by anyone.

The persuasiveness of our reasoning is the only power at our disposal. The reasons for our decisions legitimize our place in government. Our willingness to demonstrate the logic of our reasoning is our most important role. And that is how we are accountable.

But when politicians call for “more accountability” in the courts, you can bet there was a case that was resolved contrary to their interest or world view. Most often, those cases failed to reflect what those politicians have determined is the “public opinion of the day,” and the criticisms have no consideration of the legal analysis.

If you have been wronged, your remedy should not depend on your politics, your ideology, your religion, race, creed, gender, or financial status.

The legitimacy of the judiciary has never and should never be measured on the “public opinion of the day.” This mistake led to one of the most infamous decisions ever issued by the Supreme Court of Missouri. In 1852, in Scott v. Emerson, the Court overturned decades of Missouri state precedent to find Dred and Harriet Scott, and their children, were still legally slaves. In deciding the case, the majority gave in to the so-called “public opinion of the day.” The holding begins: “Times are not now as they were when the former decisions on this subject were made.”

Judge Duane Benton, formerly of the Supreme Court of Missouri and now of the United States Court of Appeals for the Eighth Circuit, pointed out that the 1852 Supreme Court of Missouri made three major errors when it decided the case: 1) it ignored precedent, 2) it ignored the will of the legislature, and 3) it based its opinion on the judges’ personal biases. The majority opinion overruled case law that allowed slaves to sue for freedom once they had been taken by their owners into free territory.

Only the dissenting judge got it right. Although a slaveholder himself, Judge Hamilton Gamble said the court should follow prior law and recognize Scott’s freedom. Gamble wrote: “Times may have changed, public feeling may have changed, but principles have not and do not change; and, in my judgment, there can be no safe basis for judicial decision, but in those principles which are immutable.”  

Public opinion is not limited by reason, precedent, or the facts presented to it. It is free to speculate and to let its premises run wild.

It is not our prerogative to change facts or law to suit a given outcome, though this is exactly what many of the people who call for judicial accountability would have us do. We have no purse, that is true – that is for the legislative branch; we have no sword, that is true – that is for the executive branch. Just because we are the least dangerous branch of government does not make us weak.

The Court’s accountability to the public is satisfied by openly publishing our opinions, which explain the reasons for our decisions. Any time our court reverses a prior case decision, institutional integrity is questioned. Were we correct when the decision was previously made, or are we correct now?  

Keeping the integrity and impartiality of the courts is not a concept that should be defined by whether a person is a Republican or Democrat; a conservative, a liberal or anywhere in between.

I would rather see a competent judiciary, full of those with integrity, legal knowledge, and impartiality, than a court constantly shifting to satisfy the whims of popular opinion. I would rather courts get it right and be unpopular, than be perceived as right because they issued a decision designed to curry popular favor.

In Missouri, the nonpartisan merit selection plan has been the cornerstone of preserving the integrity of our appellate and urban courts. Combined with retention elections, the plan keeps judges accountable to the people while at the same time protecting them from undue influence of politics and special interests. More importantly, it has protected our judicial selection process from being taken hostage by the political-financial-consulting triad that currently dominates the other two branches of government.

The oath to support and uphold the constitutions of the United States and the State of Missouri is important, and we should hold accountable all those who have taken these oaths. As attorneys, you have taken the oath to uphold both. Being an advocate for a client’s interests is just part of your professional responsibility. The preamble to the Rules of Professional Conduct provides lawyers are not only representatives of clients and officers of the legal system, but also are “public citizen[s] having special responsibility for the quality of justice.” Your clients’ impressions of the court, and the justice system begins with you.

How people are treated in any particular court determines how they perceive all Missouri courts. If they feel unjustly treated, or that the judge didn’t listen to them, they may believe all courts are unjust. To each person, his or her case is the most important case.

This ties in directly with article 2, section 4 of the Missouri Constitution:

That all constitutional government is intended to promote the general welfare of the people; that all persons have a natural right to life, liberty, the pursuit of happiness and the enjoyment of the gains of their own industry; that all persons are created equal and are entitled to equal rights and opportunity under the law; that to give security to these things is the principal office of government, and that when government does not confer this security, it fails in its chief design.

My personal message for the lawyers is simple: I recognize some people expect a small town solo practitioner to prove he is worthy of his position on the Supreme Court of Missouri every day. I understand my Court is almost always the Court of last resort for the people and legal issues involved. For that reason, I commit to always do what I think is right according to the law, and I will always do my best to explain clearly in the opinions I write why I think the law requires the result reached.

My message for my colleagues on the bench is a little more lighthearted. In fact, I have an attempt at poetry for you – “Thorns can hurt you, your man or woman desert you, your sunshine can turn to fog, but if you are a judge and want to make sure you are never friendless, do what I did and get yourself a dog.”

Thank you. 

__________

1. Reprinted here by permission.