Posted by Eugene Volokh:
Public Trust in the Judicial System:
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1116887495
Orin points to [1]a Boston Globe article that starts with:
The chief justice of the state Supreme Judicial Court said
yesterday that rhetoric about judges destroying the country and the
suggestion that court decisions should conform to public opinion
are threatening public trust in the judicial system, a cornerstone
of democracy.
Justice Margaret H. Marshall, who has been widely criticized as a
judicial activist since writing the court's 2003 decision allowing
same-sex marriage, spoke before a crowd of 7,000 at Brandeis
University's 54th commencement. . . .
[Marshall] said she is not concerned about criticism of individual
judges or decisions, but about "attacks leveled at the very
foundation of our legal system -- the principle that judges should
decide each case on its merits . . . independent of outside
influence."
"I worry when people of influence use vague, loaded terms like
'judicial activism' to skew public debate or to intimidate judges,"
Marshall said. "I worry when judicial independence is seen as a
problem to be solved and not a value to be cherished."
Well, I'm not wild about "vague, loaded terms" like "judicial
activism," either; I think complains about "activism" are often quite
imprecise, and conceal more than they reveal. Yet "judicial
independence" is often a "vague, loaded term," too. Judges should
surely be independent of some things -- for instance, the risk that
they'll be fired by political figures -- but not from other things,
such as public criticism, and decisions being overturned by
constitutional amendment. Other questions, such as whether judges
should be independent of voter reaction, through recalls or other
means of removal through the ballotbox, are more complex, but they can
hardly be resolved either through slogans such as "judicial activism"
or "judicial independence."
Nor am I particularly moved simply by claims that criticism is
"threatening public trust in the judicial system." It seems to me that
many judicial decisions -- such as the Massachusetts Supreme Judicial
Court's gay marriage decision -- are threatening public trust in the
judicial system, too. That itself doesn't make the decisions wrong:
Maintaining public trust in the judicial system isn't the most
important goal, and sometimes serving other goals (such as, for
instance, following the law when the law really does require an
unpopular result) means having to do things that undermine public
trust in the judicial system.
But the same applies to public criticism; that criticism undermines
public trust in the judicial system doesn't make it wrong. And while
"gratuitious attacks on judges" (which the chief justice particularly
criticized) are by definition unsound (in this context, I take it that
"gratuitious" means "unfounded"), an argument based on this claim is
assuming the conclusion: Surely critics of the courts would say their
criticisms are quite well-founded, and not gratuitous. Now I suspect
that the chief justice's full argument was more sophisticated and
thorough than that, but the Boston Globe's seemingly quite friendly
rendition of the argument struck me as unpersuasive.
Finally, one item that particularly stood out (emphasis mine):
Marshall began with a joke about the blue and white balloons
suspended from the Gosman Sports Center ceiling. She said she liked
the colors, which included "no red states" -- winning a big laugh.
Yes, I realize that it's a joke; but as with many jokes, I take it has
an element of truth to it. Do you suppose that when a chief justice of
a nominally nonpartisan state court jokes at a commencement that she's
pleased that Massachusetts votes Democratic, that too might help
undermine "Americans' 'trust in the integrity of our judicial system"?
References
Visible links
1.
http://www.boston.com/news/education/higher/articles/2005/05/23/sjc_chief_decries_attacks_on_judges/
Hidden links:
2. http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#1116862080
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