America's courts are not above public criticism.
BY WILLIAM H. PRYOR JR.
Sunday, October 8, 2006 12:01 a.m. EDT
Recently some leaders of the bench and bar--including, on this page last week, retired Justice Sandra Day O'Connor--have decried what they describe as unprecedented threats to the independence of the judiciary. I respectfully disagree. Although the fringes of American politics offer a few disturbing examples of ignorance of the judicial function, I agree with Justice Clarence Thomas, who observed in 1999, "What is truly surprising about today's judiciary is how strong it really is." My disagreement with those who say that the independence of the judiciary is under siege is threefold:
• Contemporary criticisms of the judiciary are relatively mild. To charge that the current disappointment regarding judges is unprecedented is to diminish the sacrifices that earlier giants of the judiciary endured. During the civil rights struggle, the ostracism and abuses suffered by federal judges in the Deep South--including Frank Johnson, John Minor Wisdom and Skelly Wright--were far worse than the current criticisms of judicial activism. Other historical moments also provide provocative counterexamples. As Justice Stephen Breyer stated several years ago, "We run no risk of returning to the days when a president (responding to [the Supreme] Court's efforts to protect the Cherokee Indians) might have said, 'John Marshall has made his decision; now let him enforce it!' "
Many contemporary criticisms of judicial decisions by politicians are no more heated than the criticisms written by jurists in dissenting opinions. In Roper v. Simmons, Justice O'Connor protested that "the Court [had] preempt[ed] the democratic debate through which genuine consensus might develop." Justice Breyer warned, in what he called the "highly politicized matter" of Bush v. Gore, that "the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself." Consider also the harsh words of Justice William Brennan in Oregon v. Elstad: "the Court mischaracterizes our precedents, obfuscates the central issues, and altogether ignores the practical realities . . . that have led nearly every lower court to reject its simplistic reasoning."
Some who complain about the current climate of criticism point to the bizarre example of Justice Tom Parker of the Alabama Supreme Court, who recently castigated his colleagues for following the ruling of the U.S. Supreme Court in Roper, which prohibited use of the death penalty for 16- and 17-year-old murderers, but there is a good ending to this story from my home state. Not only did the other members of the Alabama court faithfully apply Roper, with which many of them disagreed, but Justice Parker's political gambit failed miserably. He ran for chief justice of Alabama, aligned with his mentor, former Chief Justice Roy Moore, who ran for governor; both were trounced in the Republican primary. Their twisted ideas of opposing activist decisions by defying judicial decrees went nowhere, even in a state with a shameful history of defiance of federal authority. The Alabama justices who did their duty all prevailed in their primary contests. Alabama has come a long way since the days of Gov. Wallace standing in the schoolhouse door.
There have been recent and reprehensible incidents of violence and threats against judges, but we should not forget that those kinds of terrible crimes have occurred before. I work, for example, in the former chambers of the late Judge Robert Vance, who was murdered by a mail bomber in 1989. These offenses typically involve disgruntled litigants or dangerous criminals, not harsh critics of the judiciary as a whole. I am grateful that Congress reacted swiftly to these recent threats by providing home security systems for federal judges, which suggests that the public still appreciates the need for an independent judiciary.
• The judiciary has rendered some unjust decisions that deserved harsh rebuke. The judiciary is not perfect. The twin evils of slavery and segregation were, to say the least, exacerbated by two decisions of the Supreme Court. Justice John Marshall Harlan's dissent in Plessy v. Ferguson was prophetic: "In my opinion, the judgment this day rendered will, in time, prove to be quite as pernicious as the decision made by this tribunal in the Dred Scott Case." The judgment of history has been equally unkind to the decision in Korematsu v. United States.
Many who complain about criticisms of the judiciary concede that some criticism of judicial decisions is fair. That assessment is too mild. Occasionally criticism of judicial decisions is essential to the progress of our constitutional republic. That was true when Lincoln opposed Dred Scott, and it was true when Thurgood Marshall, as an attorney, urged the court to depart from Plessy.
Many Americans today believe that more recent decisions of the court are also terribly wrong. Some decry the flaws of criminal sentencing systems and the propensity to incarcerate low-risk offenders, while others lambaste sentences that appear to be lenient. On these fronts, citizens are more, not less, likely to respect the rule of law when they know that the law can be criticized and changed by ordinary political processes. Readers of this publication need no reminder about the potential for judicial abuse. Time and again, the business community has turned to Congress and state legislatures to reform tort laws, class actions and securities litigation, to name a few. These efforts are a healthy part of our democratic process and a recognition of the fallibility of the judiciary.
• Judges must do more than respond to criticisms; we must exercise restraint. Judges have a unique responsibility to safeguard our independence. It is not too much for us to look in the mirror and ask whether some criticisms are fair. As Justice Harlan explained in Plessy, "The courts best discharge their duty by executing the will of the lawmaking power, constitutionally expressed, leaving the results of legislation to be dealt with by the people through their representatives." Perhaps, even today, we sometimes fail in that limited duty.
Alexander Hamilton explained in Federalist No. 78 that judges exercise "neither FORCE nor WILL, but merely judgment." Hamilton's point was that we must depend upon the persuasiveness of our written opinions to command the respect of our fellow citizens. In that way, we have the foremost responsibility of safeguarding our independence.
Judge Pryor is a member of the U.S. Court of Appeals for the 11th Circuit. In 2003, while serving as attorney general of Alabama, he prosecuted and removed Roy Moore from his state judicial office based on his misconduct in defying a federal injunction.
opinionjournal.com |
