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