30 September 2006
Law Matters: Attacks on the Courts Present Real Threats
The following reflections of Missouri Chief Justice Michael A. Wolff make up his September 2006 Law Matters column.
These are challenging times for courts around the country. For the last year, I have been urging Missouri lawyers, judges and civic leaders to help educate our citizenry about the rule of law. Public polls indicating that people understand pop culture, but not their government, prove that these efforts certainly are necessary.
When I spoke with lawyers and judges gathered recently in St. Louis for their annual meeting, I asked them to consider whether our efforts are sufficient. I asked them whether our legal profession in Missouri is up to the kind of challenges to the structural integrity of the system that have come to some of our sister states.
For instance, on the South Dakota ballot this year is an initiative called "Jail for Judges." The proposal would amend the state constitution to allow special grand juries to indict, convict and sentence judges for making unpopular decisions. Colorado and Montana also face attempts to convince voters to change their constitutions to weaken their courts dramatically. The Montana proposal is characterized by one of that state's judges as: "[p]ermeated by a pervasive and general pattern and practice of fraud and procedural noncompliance perpetrated by paid, out-of-state, migrant signature gatherers."
In our own state, we regularly have proposals in the general assembly – usually imported from elsewhere – to abolish or cripple the Missouri nonpartisan court plan through various measures that would make our state's courts more subject to political interference.
What these proposals have in common is that they would weaken or destroy our constitutional system of checks and balances and would make court decisions entirely subject to popular will. Gone would be the central ideal of the rule of law – that the constitution and laws exist to protect all of us. Instead we would be forced into a system that protects only the interests of a transient political majority or an intensely interested and influential minority.
These threats are real. The great Supreme Court Justice Louis Brandeis once noted: "The greatest dangers to liberty lurk in insidious encroachment of men of zeal, well-meaning but without understanding."
We should not doubt the sincerity of the "men of zeal" who make such proposals. But I disagree profoundly with their goal of making the judiciary a tool of a particular segment of our society or special interest group.
I am not alone in my concern. U.S. Supreme Court Justice Sandra Day O'Connor said in an interview shortly before her retirement, "The Framers understood quite well that without judges who could enforce the Constitutional rights and guarantees without fear of retaliation, the Constitution would be meaningless. ... The many calls for retaliation against judges for rulings in particular cases run directly counter to the concept of the Framers of the Constitution." Justice O'Connor, in another interview, said: "I've lived a long time, and in my lifetime I have never seen such hostility toward judges coming from [the] Legislative [branch], and a little bit from [the] Executive [branch] ... and especially the states."
In a recent opinion page column in The Wall Street Journal, Justice O'Connor wrote that the legal community "needs help from other sectors of society to ensure that the current mood of cynicism does not end up compromising the rule of law. This includes members of the business community," O'Connor said, quoting economist and philosopher Adam Smith's book "The Wealth of Nations:" "Upon the impartial administration of justice depends the liberty of every individual, the sense which he has of his own security." Without judicial independence, Smith warned, "it is scare[ly] possible that justice should not frequently be sacrificed to what is vulgarly called politics."
Judicial independence, I told the recent Missouri legal gathering, is a frequently misunderstood term. It is not about judges – it really is about all the citizens, groups and businesses that come before the courts. They expect the law to be applied equally and equitably as they seek prompt, fair and impartial resolutions to their disputes. They also expect the correctness and correctability of court decisions to be dictated by a rule of law that applies equally to everyone, not by a political process based on popularity. The majority, after all, is not always right, and the minority is not always wrong.
The public values a fair, impartial, efficient and effective legal system dedicated to the principle that, where there is a right, there is a remedy. It is our challenge – as judges, lawyers and citizens – to maintain the integrity of the third branch, the judiciary, and to help insulate courts as best we can from political pressures that may be perceived as affecting courts' decisions.