22 September 2005

Michael A. Wolff, chief justice of the Supreme Court of Missouri, delivered the following address during the opening luncheon of The Missouri Bar/Judicial Conference annual meeting September 22, 2005, in Kansas City, Missouri.

President Whisler, President-elect Copeland, my colleagues on the Supreme Court of Missouri, fellow judges, fellow members of The Missouri Bar, distinguished guests:

It is an honor to talk with you today. I want to spend some time discussing with you the difficult issues that face the legal profession in Missouri today. I want to make the point that the very notion of justice itself is being challenged on many fronts in Missouri. But first, I want to make an even larger point: When viewed in light of a natural disaster’s threat to our neighbors along the Gulf Coast, our own challenges pale in comparison, and we all are reminded of how tenuous our lives on this Earth can be. Therefore, I would ask that we all pause for a moment of reflection in honor of those who were harmed by Hurricane Katrina and say a prayer, if we are so inclined, for those who may face a similar danger in the coming days. Thank you.

The survivors of this catastrophe, having endured the initial trauma, are now facing the prospect of rebuilding whole cities and functioning communities. The mass media have brought home to us, who have not experienced it directly, an understanding of what these survivors now face.

Catastrophic events can destroy civil society. Without diminishing the significance of the suffering among the people in the Gulf Coast, we should bring this disaster to bear as a lesson for our own profession. Hurricane Katrina has severely tested the administration of justice in those states. Because we are a highly developed society, we take for granted the benefits of our legal institutions. To place this calamity in perspective, some 5,000 to 6,000 lawyers have been displaced, and, in the words of one state’s court administrator, several trial courts were simply “wiped out.”

The long-range impact of lost records, lost evidence and temporary inability to function has had remarkable effects. Records, equipment, evidence, data and infrastructure are simply gone. Imagine trying to reconstruct files when both court records and attorney records are forever lost. Imagine the tremendous task facing the courts and Bar in various parts of Alabama, Mississippi and Louisiana, including the great city of New Orleans, as they try to reconstruct not just records but, more importantly, the life-altering events evidenced in those records. This disaster is further reminder, if we needed one, of the importance of our work in technology that we have been building for years. We hope our efforts in this regard will avoid similar problems here if we, God forbid, would face a similar catastrophe.

If people question the importance of the courts and the legal system, they need only look south to see what happens when civil order and justice falter and when a court system collapses. For instance, thousands of persons charged with crimes in Louisiana now must await the return of the court system before disposition of their cases can begin. In the meantime, they are held indefinitely, awaiting a return to the rule of law that was once taken for granted: where in this great country you are innocent until proven guilty and where evidence, not emotion or popular displeasure, determines the outcome of a case.

I am happy to say that many in Missouri – many in this room – are assisting the legal systems in Louisiana, Mississippi and Alabama. Our judiciary has made some resources available to Louisiana on an as-needed basis. Law schools in our state have opened their doors to law students from the affected areas, giving them a place to continue their studies. As many other states have done, our Court will consider waivers on a case-by-case basis so that displaced attorneys can continue their vital work while deciding how best to rebuild their professional lives. As a profession, we have a tradition of assisting fellow practitioners in times of need, and I encourage you all to help now in whatever way you see as possible and appropriate. As a society, we have come to rely upon the rule of law even more than we might have imagined. It is only when this system is ripped away, by natural or by other causes, that we realize that we are rudderless without it.

Even before being struck by a natural disaster, many in our profession came to realize that a diminishing respect for our society’s rule of law may be a slow-motion disaster. The erosion of the public’s understanding of the rule of law in our own country is a substantial threat to maintaining a civil society.

We are a nation first and foremost of law. We have no common national origin or ethnicity that currently forms our shared identity as Americans. Instead, our identity has been forged by the rule of law and by our common experience that faithfulness to the law guarantees liberty, equality of opportunity and a functioning society even in the face of those who, through ambition for power or wealth, would seek to impose their will on the less powerful.

The signers of the Declaration of Independence understood what oppression those in power could get away with if they controlled the law – the signers understood that it was necessary to have a stable justice system to protect the people from tyranny. We all remember “Life, Liberty, and the Pursuit of Happiness.” But consider, to be specific, some of the grievances in the Declaration against King George III, who deprived us “in many cases, of the benefits of trial by jury” and transported us “beyond seas, to be tried for pretended offenses. … [H]e has obstructed the administration of justice, by refusing his assent to laws for establishing judiciary powers. He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries.” I hope this does not sound too close to home. But those who do not know history often are condemned to repeat it.

Embodied in the Declaration of Independence is a profound feeling for due process that is part of the American soul. This feeling was not invented either by the Bill of Rights or, following the Civil War, by the Fourteenth Amendment. It was presaged in the Magna Carta, signed under duress by King John nearly 800 years ago, to protect the rule of law and the development of due process.

Our founders were wary of the tyranny not only of a king but also of political majorities. They realized in creating our constitution that a government system needs checks and balances to ensure that the most fundamental principle of our nation – the law – would be protected for the generations to follow. The varying factions should be kept in check, as James Madison argued in Federalist Paper No. 10, so that no particular group in society nor any branch of government should hold limitless power. For the same reason, we have states in control of some matters and the federal government in charge of others. The constitutions of the United States and the state of Missouri exist for the protection of all – majority and minority interests, executive and legislative branches, state and federal governments – with the judiciary serving as arbiter of disputes between factions and the instruments of government. This concept of checks and balances is engrained in our lawyerly souls and, we hope, in the souls of the American people.

This system of checks and balances, needed to protect basic human liberties, has been with us since the start of our republic. Alexander Hamilton noted in Federalist 78 that “the complete independence of the courts of justice is peculiarly essential in a limited Constitution.” If certain rights are reserved for the people, or even to the states, then who is supposed to preserve those rights? Are we just to hope that the legislative and executive branches don’t enact laws that infringe on those reserved rights and that they will, as has recently been suggested, simply choose not to adopt such laws? Hamilton certainly didn’t think so. And, lest anyone think Alexander Hamilton was proposing something akin to “judicial tyranny” or “judicial imperialism,” he disabuses us of that notion as well, stating: “this conclusion does not suppose a superiority of the judicial to the legislative power. It only supposes that the power of the people is superior to both” and, if a statute stands in opposition to the constitution, then “the judges ought to be governed by the latter rather than the former.” In Missouri, where judges stand for retention or for election, the duty is as clear as it is occasionally difficult: In each individual case, we are accountable to the law and not to the popular will.

Despite what some people today would have you believe, Chief Justice John Marshal did not pull the notion of judicial review out of thin air in 1803 in Marbury v. Madison. Judicial review can be seen in state cases as early as 1784. And early legislative attacks on state court judicial review compelled James Madison to argue for the creation of a separate federal judiciary during the debates of the constitutional convention. It is clear, then, that the notion of courts performing an indispensable role in the life of our nation through judicial review has been with us since our beginning. To all of us in this room, this may seem a bit obvious. The tone of recent attacks against our legal system, however, shows us that it is not at all obvious to some of the public at large, including some politicians. It is our collective responsibility, I believe, to change this.

Well, enough for a moment about attacks on the Judiciary. What about us as lawyers?

We all know the famous Shakespearean half-quote: “The first thing we do, is kill all the lawyers.” While this seems a bit contemptuous, in context it is a great tribute to lawyers – because if a society could just be rid of them, achieving tyrannical power would be so much easier.

Of course, the jokesters who quote Shakespeare out of context also would probably think washing away 5,000 or 6,000 thousand lawyers in the Gulf Coast region would be a good start. But let’s be assured that, when it comes to rebuilding those Gulf Coast communities, lawyers will be an integral part of that building process because lawyers have always been facilitators. They are re-creating and reorganizing businesses and governmental institutions, re-establishing property rights, designing the legal frameworks, writing the contracts and making other arrangements that will be needed to rebuild that part of our nation. They are the midwives of their region’s recovery. We know this to be true because in all of the communities in which you practice law or do business, you and the other members of our profession are called upon to be community builders, to be business facilitators, as well as zealous protectors of your clients’ rights.

You are the frontline defenders of the rule of law. The courts do not initiate legal proceedings. By and large, you do, on behalf of your clients. You make the arguments, in all three branches of government, not just the courts, and ultimately you shape the law that we have today.

Our nation purports to venerate the saying that “no one is above the law.” Law is celebrated in works of literature as in To Kill a Mockingbird: “In our country, the courts are the great leveler. . . . this is a living, breathing reality.” That was Atticus Finch, a lawyer, but of course a fictional one. We lawyers are Marbury v. Madision. We are Brown v. Board of Education, giving meaning to the phrase “equal protection of the law.” We are Miranda v. Arizona, giving protection to the rights of even the most despised among us. We are United States v. Nixon, ensuring that even the President of the United States is not above the law. And, not to put too fine a point on it, we are Bush v. Gore. I do not hesitate to mention that case, which no doubt draws groans from some, because of a conversation with a fellow in Zanzibar during our 2000 election dispute. He wondered whether our disputed election would bring rioting crowds and troops into the streets as it does in so many countries in the world. No, I hoped, it would bring lawyers, armed with their pleadings and briefs, into courtrooms. And whatever the result, we all hoped, our people would accept it.

And accept it we did.

We have gone through great struggles in our history, with enough savagery to remind us of the thin veneer of civilization that makes us appreciate the society we have become. We are a different society from that of the Civil War. We are a different society from that existing at the founding of our country when, as you may recall, in the early 19th century, Alexander Hamilton, who had been our first secretary of the treasury, was killed in a duel with Vice President Aaron Burr.

We’ve grown up, I believe.

We strive daily to accommodate the contending forces in our society, without firearms or fisticuffs. We try to do justice to those who have been persecuted in the past. We have, in short, come to be a mature democratic society based upon the rule of law.

But mature does not mean permanent. What we as lawyers and judges work to preserve and to build is valuable. We operate in human institutions, whose frailties are continually exposed. Like Thomas Jefferson, we believe the people, including ourselves, are perfectible through education and, in the words of our constitution, that our institutions help us to form a more perfect union. Our communities rely upon us, and so do our children and our grandchildren. For the most part, we have served our families, our communities and our society well.

I am proud of the diligent work that The Missouri Bar and other associations of lawyers in our state have done, both inwardly to improve our profession and outwardly to support our communities. Our successes as lawyers have not been solo performances; every one of us has been mentored. This spirit of community in our profession is shown in the many lawyers from around our state who volunteer through the Missouri Lawyers Assistance Program and other organizations to help their fellow lawyers to overcome depression, chemical dependency and other struggles in times of personal crisis. This spirit shows in the thousands of lawyers statewide who provide countless hours of pro bono service to communities, organizations and individuals in need of legal assistance. While lawyers and judges should justly be proud of these efforts that communicate our values to the public at large, we need to do more.

We face a critical point – and I think this point has been made at this conference and will continue to be made – a critical point in our history that echoes from the past and into the future. Each of us, I believe, has a role and responsibility in defending our system of justice and the rule of law. The threats we face are real. The cynicism and sarcasm toward government, the courts and the legal profession are palpable. Today the public understands the legal profession and the role of the judicial system less than ever before, and the mass media and the Internet are available to anyone with an opinion, no matter how informed or uninformed that opinion may be.

Perhaps we are at least partly to blame for this. Perhaps we have taken for granted the rule of law and its place in the social, political and economic progress of this state and nation. Perhaps the “rule of law” has become just an overused term, devoid of emotional meaning and intellectual capital. Perhaps we have grown so used to criticism, given the nature of our profession, that we believe our current challenges are simply part of another phase that will pass with time. Perhaps they will. But maybe they won’t. Let us not fail in our role as community leaders to educate the public about the importance of the rule of law. So let us not fail to defend the principles of our justice system in the face of skepticism and distrust.

As I have traveled around the state, I am encouraged that members of our profession are appropriately concerned about the current threats. Their concern is not about the status of certain legal issues but rather about maintaining the integrity of the process. After all, it is not a particular case or its result that makes the rule of law what it is – it is the process, as preserved by practicing attorneys in a judicial system whose hallmarks are impartiality and independence.

It is that sense of “we” – a sense of a unified profession, not one of individuals practicing certain types of law – that we must fight to preserve. Outside forces of all political stripes seek to take greater control of our legal system and to impede the impartiality which is its hallmark. As a result, we must rely on each other more. We must view ourselves as one profession, not above criticism but constantly striving to do better. The threat of small factions using legal means to seek greater power continues today.

Let me give you an example to consider as emblematic of threats that we may face. An initiative petition is being circulated in South Dakota called JAIL, or Judicial Accountability Initiative Law. The proposal would amend the state’s constitution to create special grand juries for the purpose of investigating complaints against judges, including complaints that a judge ruled the wrong way in deciding a case or even a particular objection. These grand juries would have the power to sanction judges by levying fines and forfeitures against them and, for third-time offenses, to remove judges from the bench. These special grand juries would have the power to indict judges, subjecting them to criminal proceedings before special trial juries, and to convict and sentence the offending judges. When I first heard about this, I thought it was something of a joke. But then I heard that some 10,000 persons – about a third of the number necessary to get this on the ballot – have signed the initiative petition. So lest you think that this is a phenomenon of the Wild West, there is an organization contemplating a similar effort right here in Missouri.

And here at home, real challenges remain, not just from the fringe elements: Threats to the Missouri nonpartisan court plan persist, public funding levels for our justice system continue to worsen, and unfair criticisms of lawyers and judges surface on an all-too-regular basis.

We must make a genuine effort for civics education. We need to talk about the values we all share and the principles of the rule of law that make our nation so proudly distinct. The Missouri Bar has educational resources to help us, but it is up to us to become passionately engaged in this cause that is so central to our time. We must get involved with our schools, our civic organizations, our institutions, and with the media to educate people about the justice system.

The people will educate us in return, I believe, by sharing with us their anxieties, their concerns and their suggestions for improvement. And, as importantly, we will educate ourselves by reminding ourselves of the values we share as a profession and the urgency to maintain those shared values in our society at large.

I applaud you for all of your efforts, large and small, in this great enterprise. There is much to be done. Let us remain united in our efforts to maintain the rule of law, to improve this great country, and to preserve and enhance this profession of which we can all be proud. Thank you very much.