e-Discovery Team

In this blog I quote Chief Justice John Roberts on the critically important principle of Judicial Integrity to show why the Court should avoid the appearance of impropriety and stick with precedent. They need to step away from the brink of a major legal disaster and not follow like lemmings the political leaders that got most of them appointed. I sincerely hope, but do not expect, the Supreme Court to wise up, back away and not overrule Roe v. Wade.

My argument is based on only one of many opinions by the high court on this key subject, but this is the most recent one, Williams-Yulee v. Fla. Bar, 575 U.S. 433, 2015 U.S. LEXIS 2983 (U.S. 2015). In this case, where incidentally the Court ruled against a black female lawyer in Florida, Chief Justice Roberts had this to say about judicial integrity.

Judges are not politicians, even when they come to the bench by way of the ballot. And a State’s decision to elect its judiciary does not compel it to  [*438]  treat judicial candidates like campaigners for political office. A State may assure its people that judges will apply the law without fear or favor—and without having personally asked anyone for money.

Justice Roberts, Williams-Yulee v. Fla. Bar, 575 U.S. 433, 437-438, 2015 U.S. LEXIS 2983 (U.S. 2015).

The Chief Justice went on trace the ancient history and grave importance to democracy of judicial integrity.

Judges, charged with exercising strict neutrality and independence, cannot supplicate campaign donors without diminishing public confidence in judicial integrity. This principle dates back at least eight centuries to Magna Carta, which proclaimed, “To no one will we sell, to no one will we refuse or delay, right or justice.” Cl. 40 (1215), in W. McKechnie, Magna Carta, A Commentary on the Great Charter of King John 395 (2d ed. 1914). The same concept underlies the common law judicial oath, which binds a judge to “do right to all manner of people . . . without fear or favour, affection or ill-will,” 10 Encyclopaedia of the Laws of England 105 (2d ed. 1908), and the oath that each of us took to “administer justice without respect to persons, and do equal right to the poor and to the rich,” 28 U. S. C. §453. Simply put, Florida and most other States have concluded that the public may lack confidence in a judge’s ability to administer justice without fear or favor if he comes to office by asking for favors.

Justice Roberts, Id. at 445.

Justice Roberts went on to echo the hallowed words on judicial integrity of truly great Supreme Court Justices of the past.

The interest served by Canon 7C(1) has firm support in our precedents. We have recognized the “vital state interest” in safeguarding “public confidence in the fairness and integrity of the nation’s elected judges.” Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 889, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009) (internal quotation marks omitted). The importance of public confidence in the integrity of judges stems from the place of the judiciary in the government. Unlike the executive or the legislature, the judiciary “has no influence over either the sword or the purse; . . . neither force nor will but merely judgment.” The Federalist No. 78, p. 465 (C. Rossiter ed. 1961) (A. Hamilton) (capitalization altered). The judiciary’s authority therefore depends in large measure on the public’s willingness to respect and follow its decisions. As Justice Frankfurter once put it for the Court, “justice must satisfy the appearance of justice.” Offutt v. United States, 348 U. S. 11, 14, 75 S. Ct. 11, 99 L. Ed. 11 (1954). It follows that public perception of judicial integrity is “a state interest of the highest order.” Caperton, 556 U. S., at 889, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (quoting White, 536 U. S., at 793, 122 S. Ct. 2528, 153 L. Ed. 2d 694 (Kennedy, J., concurring)).

Justice Roberts, Id. (emphasis added to Justice Frankfurter’s quote and Robert’s follow)

Chief Justice Roberts goes on to stress the great historical importance of judicial integrity.

The same is not true of judges. In deciding cases, a judge is not to follow the preferences of his supporters, or provide any special consideration to his campaign donors. A judge instead must “observe  the utmost fairness,” striving to be “perfectly and completely independent, with nothing to influence or controul him but God and his conscience.” Address of John Marshall, in Proceedings and Debates of the Virginia State Convention of 1829-1830, p. 616 (1830).

Justice Roberts, Id. at 447.

Finally, Justice Roberts observed the sometimes obtuse nature of the concept of judicial integrity. This may be one of these times.

The concept of public confidence in judicial integrity does not easily reduce to precise definition, nor does it lend itself to proof by documentary record. But no one denies that it is genuine and compelling.

Justice Roberts, Id. 447.

In the Concurring Opinion of Justice Ginsberg to Williams-Yulee v. Fla. Bar, which in the Part II here quoted was joined by Justice Bryer, she wisely observed the political context and influence of money on the appearance of judicial integrity.

In recent years, moreover, issue-oriented organizations and political action committees have spent millions of dollars opposing the reelection of judges whose decisions do not tow a party line or are alleged to be out of step with public opinion. Following the Iowa Supreme Court’s 2009 invalidation of the State’s same-sex marriage ban, for example, national organizations poured money into a successful campaign to remove three justices from that Court. J. Shugerman, The People’s Courts: Pursuing Judicial Independence in America 3 (2012). Attack advertisements funded by issue or politically driven organizations portrayed the justices as political actors; they lambasted the Iowa Supreme Court for “usurp[ing] the will of voters.” A. Skaggs, M. da Silva, L. Casey, & C. Hall, The New Politics of Judicial Elections 2009-10, p. 9 (C. Hall ed. 2011) (internal quotation marks omitted).

Similarly portraying judges as belonging to another political branch, huge amounts have been spent on advertisements opposing retention of judges because they rendered unpopular decisions in favor of criminal defendants. D. Goldberg, S. Samis, E. Bender, & R. Weiss, The New Politics of Judicial Elections 2004, pp. 5, 10-11 (J. Rutledge ed. 2005) (hereinafter Goldberg). In North Carolina, for example, in 2014, a political action committee aired “a widely condemned TV spot accusing [North Carolina Supreme Court Justice Robin] Hudson of being ‘soft’ on child-molesters.” Oliphant, When Judges Go Courting, National Journal Magazine, Oct. 18, 2014, p. 28. And in West Virginia, as described in Caperton v. A. T. Massey Coal Co., 556 U. S. 868, 873, 129 S. Ct. 2252, 173 L. Ed. 2d 1208 (2009), coal executive Don Blankenship lavishly funded a political action committee called “And For The Sake Of The Kids.” That group bought advertisements accusing Justice Warren McGraw of freeing a “child rapist” and allowing that “rapist” to “work as a janitor at a West Virginia school.” Goldberg 4; see A. Bannon, E. Velasco, L. Casey, & L. Reagan, The New Politics of Judicial Elections 2011-12, p. 22 (L. Kinney and P. Hardin eds. 2013) (reporting that in 2011 and 2012, interest-oriented groups were 22 times more likely to purchase an “attack” advertisement than were judicial candidates themselves).

Disproportionate spending to influence court judgments threatens both the appearance and actuality of judicial independence.  [*461]  Numerous studies report that the money pressure groups spend on judicial elections “can affect judicial decision-making across a broad range of cases.” Brief for Professors of Law, Economics, and Political Science as Amici Curiae 14 (hereinafter Professors’ Brief), see id., at 5-17; J. Shepherd & M. Kang, Skewed Justice 1 (2014), available at http://skewedjustice.org (All Internet materials as visited Apr. 24, 2015, and included in Clerk of Court’s case file) (finding that a recent “explosion in spending on television attack advertisements . . . has made courts less likely to rule in favor of defendants in criminal appeals”).

How does the electorate perceive outsized spending on judicial elections? Multiple surveys over the past 13 years indicate that voters overwhelmingly believe direct contributions to judges’ campaigns have at least “some influence” on judicial decisionmaking. See Professors’ Brief 23 (citing polls). Disquieting as well, in response to a recent poll, 87% of voters stated that advertisements purchased by interest groups during judicial elections can have either “some” or “a great deal of influence” on an elected “judge’s later decisions.” Justice at Stake/Brennan Center National Poll 3, Question 9 (Oct. 22-24, 2013) (conducted by 20/20 Insight LLC), available at http://www.justiceatstake.org /file.cfm /media /news/toplines337_B2D51323DC5D0.pdf.

Justice Ginsberg, Id. at pgs. 459-461.

Conclusion

Skewed justice where big corporate money has unfairly elected unworthy government officials has brought us to a social crises. In my opinion, this crises is the inevitable result of technology and the unbridled explosion of information, most of it false, that it brings. Information → Knowledge → Wisdom: Progression of Society in the Age of Computers. The Pandora’s box of mis-Information explosion must be contained by Knowledge and Wisdom. Otherwise the consequences could be devastating. Can Justice Survive the Internet? Can the World? It’s Not a Sure Thing. Look Up! Perhaps this explains why we see no evidence of life on other planets in this vast Universe. Very few life forms may be able to survive this technology passage test and evolve onto other stars. Let us hope this is not true and we will continue to progress and will make it as a species. But it is not a sure thing. There is serious trouble ahead.

We are seeing terrible signs of a crises now, including the massive protests and violence I expect to see soon created by the Supreme Court’s apparent decision to make abortions illegal again. The appearance of lack of judicial integrity in this decision is obvious. I leave it to others to emphasize this and the political nature of the decision. Whether the new judges on the high court are actually beholden to politicians that had them appointed, is not something that must be proven as true or false. Judicial integrity, as seen in the quotes of Justice Roberts above, makes it clear that appearances are all important. There is undoubtedly the appearance that this sudden reversal and departure from well established precedent is a political act. True judicial integrity must consider appearances and this expected overruling of Roe v Wade looks bad, very bad.

Perhaps a majority on the court will have wisdom, including especially Chief Justice Roberts, and will step away from the precipice. No doubt that is why the 67 page draft opinion was leaked. That and its many inflammatory, ridiculing statements by Justice Samuel Alito. The draft language is truly shocking and could impact many areas of individual rights. But I for one doubt that the Supreme court will wise up. Brace yourself for the worst. Read the dissents carefully. Let us pray that justice survives in the long run.

This entry was posted on Tuesday, May 3rd, 2022 at 9:07 am and is filed under Lawyers Duties. You can follow any responses to this entry through the RSS 2.0 feed. Both comments and pings are currently closed.