Judges form the third branch of government. The general public has a much poorer understanding of the judicial branch and what it does than the executive and legislative branches. Most people go their entire lives with only brief encounters with the judicial branch, mostly through municipal or family courts. Many of our fellow citizens are unable to explain the different roles of a justice of the peace and the Supreme Court of Texas. More concerning, many people have no concept about the importance of the rule of law (or even what that phrase really means) and the independence of the judiciary.
With deep divisions in our society and the increasingly partisan nature of exchanges over issues, attacks on our judiciary grow more frequent and more intense. And because of the close relationship with lawyers to our judicial system, many of these attacks include the entire legal profession as well.
The rule of law separates this country from so many others around the world. Without it, our freedom and our way of life cannot endure. And the rule of law depends largely on respect for the judiciary. As lawyers, all of us must do what we can to foster respect for the rule of law and the role the judiciary plays in upholding it. And that begins by helping our fellow, non-lawyer citizens understand the importance of an independent judiciary and its role in our constitutional system.
What judges do is both important and difficult. Many of the most divisive issues in our society—capital punishment and abortion, to name just two examples—end up in our courts. Every day, judges across the country make difficult decisions in cases affecting child custody, incarceration, and other matters that have very real consequences for the lives of millions of Americans. Nothing about this is easy. But all of it is important. And the ability of citizens to get decisions from neutral arbiters in a forum governed by legal rules and principles is integral to our system of government and our way of life.
Every one of these decisions results in a winner and a loser. And in cases involving “hot-button issues,” the decisions may implicate deeply and passionately held ethical, religious, social, or political opinions held by many thousands of citizens. Unfortunately, with ever greater frequency, judges’ decisions are being met not with criticism of judicial philosophy, legal reasoning, or application of precedent (all of which are fair game for criticism) but with accusations of political bias or, even worse, outright political corruption.
To be sure, not all of these attacks are borne of ignorance concerning the role of the judiciary. Sadly, some personal attacks come from lawyers. But most do not. And most result from fundamental misconceptions about the judicial function.
For example, most people have no conception of the administrative side of being a judge—for example, the “simple” (and it definitely isn’t) task of just making sure citizens can get access to the judiciary during this public health crisis. Here in Dallas, our judges have done a magnificent job dealing with the COVID-19 crisis.
Historically, courts and the legal profession have been perceived to be behind the times when it comes to the use of technology. Not anymore! Within days of the entry of shelter in place orders in March, our local judges were holding virtual hearings using Zoom and Microsoft Teams. At the time of this article, judges are working to figure out how jury trials can be held when the concern about the health and safety of the public is of paramount importance. The judges have made it clear that the pandemic will not stop the wheels of justice from turning.
Their success is something that all of us—liberal and conservative, democrat and republican—should applaud. And, more important, we should be explaining it to our non-lawyer clients and friends to help them appreciate the extraordinary efforts of Dallas judges to ensure that the halls of justice remain open to those who need them.
Additionally, we can and should do more to defend our judges when they come under attack for deciding difficult cases. After all, the ethical rules governing judges generally prevent them from defending themselves. We must step into the void and respond to unfair attacks on judicial integrity. Lawyers and judges are in this together. If lawyers do not defend the role of the independent judiciary, then who will?
At the Dallas Bar Association, part of our mission in part is to serve, support, and promote good relations with the judiciary and to improve the administration of justice. We need to take this mission statement seriously and do what we can to support and defend our judiciary from unfair attacks.
So, what can we do?
First, in responding to judicial decisions, act like a lawyer. If you believe the decision is wrong legally, then explain why you believe it is wrong legally. Don’t chalk it up to personalities, politics, or corruption. Attacks spread like wildfire in this age of social media—particularly in a time of high stress such as with the current pandemic crisis. If our fellow citizens believe that we as lawyers no longer have faith in the integrity of the judiciary, they cannot help but lose faith as well.
Second, respond when people attack a judge unfairly. For me, this comes up most often in the family law context when someone talking to me about their case is convinced the proceeding and the system are rigged and the judge is in on it. All of us as lawyers hear stories from people who have lost their case and blame it on the judge being “in the other side’s pocket.” We need to rebut these perceptions at every turn. I love seeing lawyers defend the judicial process in op-ed articles in the newspaper following an attack on a member of the judiciary. There was no better defense of the independence of the judiciary than the one given by Justice Roberts in late 2018.
Finally, if you are active in social media, be a source of good, reliable, and accurate information—not disinformation. Our fellow citizens look to us, as lawyers, as reliable sources of information about the law. Nothing discourages me more than when I see a member of the legal profession spreading inaccurate information about the legal system on social media for political purposes. Let me share just two examples.
Together, we can make a difference. I wouldn’t have wanted this position if I didn’t love lawyers, judges, and the judicial system. Together, let’s work to ensure the continuing viability and independence of our judiciary.