Judicial
independence is a cornerstone of constitutional democracy, promoting the ideal
that the process of determining an outcome in a legal case is unaffected by the
identity of those the dispute involves, unaffected by public opinion regarding
how the dispute should be resolved or the popularity of the parties and their
arguments, and unaffected by thoughts or opinions held by members of the other two
equal branches of government about the dispute’s proper outcome. As a bar
association, we
believe that judicial independence is imperative to maintaining a fair court
system and upholding the rule of law.
Prompted
by a series of recent events that have made news, and a general sense that the
climate around judicial rulings and other decisions, as well as the process for
judicial selection and appointment, may be undermining public faith in the
judiciary, the BBA Council approved the creation of a Working Group on Judicial
Independence to take a closer look at the issue. BBA President Jon Albano of Morgan
Lewis selected eleven working group members with a diverse set of backgrounds,
including retired judges, practicing attorneys, and academics.
Under the
leadership of Co-Chairs Lisa Goodheart of Sugarman Rogers and Renée Landers of
Suffolk University, both of them former BBA Presidents, the Working Group spent
the last six months discussing, debating, and analyzing the key aspects of
judicial independence and the values that underpin it. The Working Group identified
a set of five core principles that can guide the BBA, the wider bar and general
public, and a set of recommendations for bar associations, attorneys, judges
and courts. Read the
full report here.
The BBA’s Historical Support for Judicial Independence
The mission of the BBA is to facilitate access to justice, advance
the highest standards of excellence for the legal profession, foster a diverse
and inclusive professional community, and serve the community at large. Over
the years, the BBA has been a constant supporter of a well-functioning,
adequately funded, and independent judiciary, and as an association of
attorneys, we believe we have a particular responsibility to ensure that the
role of the judicial branch is understood and that its independence is
defended.
This responsibility compelled us,
four times in the last two-and-a-half years, to speak out in response to
statements and actions by local and national figures that seemed to threaten
the independence of the judiciary.
Most
recently, in April 2019 the BBA released a statement in response to the indictment of
Massachusetts Judge Shelley Joseph on obstruction of justice charges. It provides
that “[i]n the absence of allegations of corruption or graft, a federal
indictment of a state court judge based on her judicial actions is an
unprecedented overreach into state authority, and poses a serious threat to the
judicial independence that we all depend upon to protect our rights under the
law. The BBA has kept apprised of Judge Joseph’s case and was gratified
to note that both the SJC’s
August 13th opinions reinstating Judge Joseph’s salary during
the pendency of her criminal case cited judicial independence as a primary
motivation for making that decision.
The BBA has released statements
condemning unfair criticisms of judges in the past, and the Working Group’s
report cites a number of them in recent years, in an appendix to the report.
Aside from condemning unfair criticism
towards judges, the BBA has also supported judicial independence by advocating on
related issues. For example, our 2018 report spelling
out the BBA’s Immigration Principles, included “Access to a Fair Immigration
Process with Independent Judges” as a key tenet and expressed deep concern that
“immigration judges…lack many of the protections associated with judicial
independence.” It was clear to that immigration working group that the potential
for politicization of immigration proceedings affects the ability of the
judiciary to maintain its independence from outside influences, to the
detriment of immigration judges’ ability to decide matters impartially.
In May 2018, when the BBA endorsed
proposed legislation requiring that all public schools provide
instruction in civics, then-President Mark Smith noted that “the judiciary’s unique role in
our state and federal governments may be especially vulnerable when the public
lacks knowledge of key concepts like the role of checks and balances,
separation of powers, and judicial review.” This statement contributed to the
Judicial Independence Working Group’s decision to include public education in
its set of recommendations. They determined that access to information on the
role and functioning of the judiciary is essential to the public’s confidence
in judges, and that public perceptions play a major role in the ability of the
judiciary to remain independent.
To
read more about the BBA’s past actions on matters relating to judicial
independence, see Appendix A of the report.
The
Judicial Independence Working Group (JIWG)
The
JIWG was made up of the following individuals:
- Renée Landers, Co-Chair; Professor of Law and Faculty Director, Suffolk University Law School;
Member of the Committee on Judicial Ethics - Lisa Goodheart, Co-Chair; Partner, Sugarman Rogers; Immediate Past Chair of the Court Management Advisory Board
- Jonathan Albano, BBA President, Partner, Morgan Lewis
- Hon. Robert Cordy, (ret.), Supreme Judicial Court
- Lawrence Friedman, Professor, New England Law | Boston
- Hon. E. Susan Garsh, (ret.), Massachusetts Superior Court
- Giselle Joffre, Partner, Foley Hoag
- Paul Lannon, Partner, Holland & Knight
- Hon. James McHugh, (ret.) Massachusetts Appeals Court
- Patrick Moore, Partner, Hemenway & Barnes
- Ian Roffman, Partner, Nutter McClennen & Fish
Over the course of
six months, the JIWG met periodically and discussed, debated, and thought
critically about the current threats to judicial independence. During this
time, they were able to hear from the Commission on Judicial Conduct, the
Supreme Judicial Court (SJC) Public Information Office, the First Circuit’s
Office of the Circuit Executive, the SJC Committee on Judicial Ethics, and
current and former members of the press. These groups and individuals shared
their time, experience, and expertise over the course of the Working Group’s
efforts, and the BBA is extremely grateful for their contributions.
The
Report: “Judicial Independence: Promoting Justice and Maintaining Democracy”
The new BBA report outlines the importance
of judicial independence, recites the threats it is currently facing, and
proposes a set of recommendations to mitigate these threats. In its
deliberations, the working group determined that judicial independence is
essential to our society in the following ways:
- the protection of civil rights and liberties
- the role it plays in producing economic order
- the reassurance that our personal affairs,
when they wind up in court, will be adjudicated fairly
- the widespread recognition among the citizenry
that the law will be applied and administered fairly
The
working group found that judicial independence has, for some time, been under
attack in various ways. These attacks can take the form of vocal outbursts by
public officials and thought leaders singling out specific judges or unpopular
decisions, or they can be more subtle and progressive attacks that
de-legitimize the judicial process in the eyes of the public over time—whether
by questioning a judge’s or a court’s ability to act impartially or by
suggesting that they can be expected to deliver the kinds of decisions the
appointing authority has promised.
Public and private attacks on
judicial independence can have significant deleterious consequences for
individual judges as well as the integrity and operation of the judiciary
generally. These consequences include: generating pressure for judges, going
forward, to consider factors beyond the merits of the cases before them,
instead of focusing exclusively on the facts and legal issues presented; and tainting
public perception of the judiciary and undermining public trust in the judicial
process.
The
working group acknowledged that public scrutiny and criticism of judges and the
general administration of the judiciary can have positive effects when the
scrutiny, whether performed by the traditional press or other institutions,
fulfills a “watchdog” function for the public, and serves to root out
corruption, misconduct, and unjust practices. The challenge is distinguishing
between harmful attacks on judicial independence and helpful efforts at reform.
Based
on this understanding of the threats facing judicial independence, the working
group developed the following five principles:
Principle 1: In our system of government, judicial
independence is a concept that is fundamental to the rule of law and to the
checks and balances the rule of law supports.
Principle 2: “Rule of law” is a shorthand expression for
a legal system in which disputes are predictably decided on the basis of
neutral legal principles applied in a systematic and orderly way that is free
from bias and under which the resulting decisions typically are following
voluntarily by those whom they affect.
Principle 3: The vitality of the rule of law ultimately
depends on public understanding of the value and importance of the concept
coupled with public support for judicial independence.
Principle 4: The Boston Bar Association has an obligation
to promote, support, and defend judicial independence and
should use its education, public policy and advocacy resources to enhance
public understanding of the judiciary, demystify the judicial process, and
explain to the public and elected officials the ways in which judicial
independence is essential to protecting the rights and liberties of us
all.
Principle
5:
The BBA should serve as a resource to the public and press by responding to
assaults on judicial independence in a timely and measured manner that
distinguishes between, on the one hand, vigorous public debate and dissent and,
on the other hand, misinformation and personal attacks that undermine the
public’s respect for an confidence in the courts.
In keeping with these principles, the Working Group offered the
following recommendations:
- Bar
Associations: Bar
Associations should use their institutional voices to defend, explain, and
promote the value of judicial independence and respond to unfounded and
uninformed attacks on the judiciary. In this vein, bar associations should work
to serve as a resource to the press and public to explain key legal processes
and to counter misinformation. Bar associations would also benefit from
developing a set of criteria that can be used to determine when and how to
respond to developments that may threaten the independence of the judiciary.
- Lawyers: Lawyers in all practice areascan and
should be more proactive in taking actions to promote and defend judicial
independence, including by participating in public education opportunities,
helping the public to discern between healthy criticism of the judiciary and
potentially dangerous attacks, and speaking out against those instances that
rise to the level of an unfair attack.
- Judges
and Courts: The Massachusetts
Trial Court should expand and improve its data collection and transparency
practices, which will aid in maintaining public trust in the judiciary and
identifying patterns and practices that merit further study and improvements.
Judges, though not always required by law, should endeavor to explain their
reasoning in written decisions when appropriate and, when permitted by the Code
of Judicial Conduct, support judicial independence by educating the public,
whether in person, by writing articles, or through the press, on key issues.
- Diversity
and Inclusion: A diverse and inclusive bench
will help to promote equity, fairness, and public trust in judicial
decision-making. Achieving this goal will take collective action from the legal
community, including making diverse judicial nominations and appointments a
priority, improving court culture to ensure that professional experiences are
inclusive and equitable, and creating an effective pipeline for talent that
supports the legal education, employment, and development of lawyers from
diverse backgrounds.
Taken
together, these recommendations function as a call to the bar and the bench to
focus attention on efforts to ensure the judiciary remains independent,
supported, understood, and accountable. As the BBA’s Working Group concluded,
no less than the health of our democracy may be at stake.
We would
like to express our gratitude to the Judicial Independence Working Group, and
particularly Co-Chairs Lisa Goodheart and Renée Landers, for all their hard work
in producing this report. We anticipate that its principles and recommendations
will guide the BBA in its advocacy on this issue for years to come.
-Lucia Caballero Guiu
Government Relations and Executive Assistant
Boston Bar Association