Part 1 of ‘What is Judicial Reform’ explored the roots of our nation, the Federalist Papers, the “tyranny of the majority.” (Part 1 here).
That post reviewed that Madison (Publius) cautioned that we should never ration liberty. The solution is to protect liberty by controlling tyranny.
As we assess what can be changed for the better in our courts, it’s important to remember our roots.
This post boils down what I think the judicial reform movement is all about.
1. A judge cannot be a king. The founders of this country affirmatively rejected monarchy as a form of government. They sought to remove the “king” from the system. They were tired of the reason for government actions being, “because I said so.” We need to remember that, and make sure it’s applied to the judiciary, and not just the executive branch.
Judges were not meant to be the “kings” of their courtroom. The founders did not envision that judges would do whatever they wanted, merely beause they are a judge.
It is antithetical to our form of government to let any man be a king.
2. The reasons for judicial decisions cannot be secret.
Kings make up laws as they go along. They change the law when they want to. Dictators keep the law secret. They keep their subjects off balance by preventing them from knowing the rules (he who makes the rules wins).
In a democracy, we decided long ago that the law would be public. There is no point in the law otherwise. It’s by making laws public that we give people the chance to conform their conduct.
Secret laws keep the public off balance, they give power to those who create them, and who change them at will. Secret laws make people kings.
(And we know from #1 – judges cannot be kings.)
3. If it’s not about applying the law, the system makes no sense.
Judges are given authority and power so they can apply the law. If we waver from this, if we let judges make decisions based on secret criteria, the system makes no sense.
Secret laws aren’t always written on paper – hidden in the back room somewhere (although sometimes they are!). When I speak of hidden rules, I also mean the culture of how judges decide among themselves how they will rule. I am also referring to the “back room deals” that do exist in our system.
Because none of that is about the law.
We can’t keep the culture because it’s comfortable. If we need to make big change to get back to our roots – so be it. That’s what reform is all about.
Judicial reformists say, “why should we (the public) pay lots of tax money for a system that does not make sense?”
4. Applying the law also means following the law.
I try as much as possible to credit those judges who do follow the law. I acknowledge them here.
But there are judges who either decide to do it, or who drift unconsciously into a place where they act like they are above the law.
If they think people don’t notice – judicial reformists are here to say they do.
Judges who act like they are above the law is a hot issue for judicial reformists.
Those who are charged with enforcing the law must obey the law.
A system that does not require its judges to obey the law sends the message that it’s not about the law, it’s about status, or who has friends in the system, or who has money. That does not encourage self-compliance.
And without self-compliance, the system falls apart.
5. The judicial branch is supposed to be the watchdog.
The courts are not just “one more” branch of government. The judicial branch was created to help protect the public from the tyranny of government and the tyranny of the majority.
- Keeping the executive in check. This is easily seen in the courts’ watchdog role over the exeucutive branch. For example, if the city government won’t give you public documents, you can sue in court to enforce sunshine laws.
- Keeping the legislature in check. Since Marbury v. Madison, courts have kept the legislature in check by assessing the constitutionality of statutes. If if the ‘majority’ wants a statute, the statute might still offend the constitution – usually an issue of the courts protecting individual rights.
If courts give up this role, if they “side” with goverment, if they “protect” government workers from other branches from being accountable under the law, instead of forcing them to obey the law, we have lost our way.
6. It’s about equal rights.
The majority opinion should not automatically prevail in court.
The court is the place the individual who goes against the grain, who believes something different, who does not acede to the majority – has an equal chance of winning.
The courts are the place the ‘little guy’ should be able to come, feel safe, feel confident that the law will be applied – not some popularity contest.
That’s what is means to put the law above politics, to put it above gossip and junior high vendettas.
Judges who are worried about “what their friends will think” if they rule in favor of the “unpopular” person or belief, or whether they will get an angry phone call from the sheriff, or what other judges will say at the Friday morning breakfast, probably don’t belong in the job. That’s not the rule of law – that’s the rule of men. And it’s killing this great institution.
7. It takes effort to do the real work of judging.
I’ve seen judges favor police, favor prosecutors. I’d go so far as to say that some bench cultures give prosecutors everything they want. I’ve observed judges refuse even to consider that police engaged in bad conduct.
That’s a refusal to follow the law.
Judicial reformists have a pretty good idea how so many innocent people end up in prison.
I’ve also observed judges protecting the “budget” of another branch.
I’ve watched judges insert language in their order that is obviously designed to protect some government worker. I’ve seen this happen when that wasn’t even an issue raised by the parties.
If judges so identify with public workers that they are willing to disregard the facts and the law to protect these people from being held accountable, the system falls apart.
Judges are supposed to protect the public. Nowhere is it written that they should worry about how much it will cost the executive branch if a social worker is found to have engaged in bad conduct. Nowhere is it written that judges should protect criminal prosecutors from every Brady motion, because that is also an ethics violation for them. Writing this type of policy into the case, without opening discussing it in case law, is a type of secret law.
8. Don’t do what’s natural, do what’s right.
This misuse of power by judges might be natural. Because they are themselves employees of government, they may drift into a place where they want to protect people like them. Those thoughts are natural. But that instinct must be overcome to do the real work of judging.
People who come to court are often emotional about their own story. That’s natural; it’s instinct. Judges ask those people to put the emotion aside while interacting with the court.
Judges ask people to be thoughtful about their responses. To quantify the damage. To intellectualize the harm.
What’s good for the goose is good for the gander.
Judicial reformists ask judges to put aside instinct, stop doing just what’s natural or easy. We (the public) need you to make a conscious effort not to drift into tyranny.
Our liberty depends on it.