Why We Hate To Love Judges

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Now, it takes no deep study of human nature to recognize that independence and accountability are, in the courtroom at least, virtually incompatible. Judges at every level regularly make decisions that broadly affect countless individuals and organized constituencies. Think only of rulings touching congressional redistricting, or abortion, or, in less sensitive areas, the right to sue for tobacco-related diseases or the right of a shareholder to bring action on a corporation’s behalf against its own officers. Even a judgment on whether a multitalented athlete should play basketball or baseball arouses the passions of the competing franchises’ respective adherents.

Criminal cases also provoke judge-targeting partisanship. In the abstract, we all abhor crime. Everyone wants proper punishment for the guilty, just as everybody expects that a fair trial will precede the determination of guilt. In reality, however, we tend to blur the distinction between accusation and proof, between passion and rationality. This is no modern phenomenon. Consider the Salem witch trials, the execution of Quakers in seventeenth-century Boston, and the obloquy in which his contemporaries drenched John Adams for defending the British soldiers in the aftermath of the Boston Massacre.

All these matters, civil and criminal, igniting in one way or another the interest and passions of average people, exert immense pressure on the judges who must decide them. It is a pressure that all judges feel, even as they try to resist it. Generally, we expect our judges not to yield—that is, not to decide any case on the basis of a calculation as to whether one outcome is more likely than another to receive the acclaim of editorial writers, talk-show callers, legislators who control judicial salaries and operating budgets, or, most important, voters.

So one aspect of our national judicial ideal is the judge who calls them as he or she sees them. At the same time, we very much expect our judges to demonstrate sensitivity to what the people desire in the way of legal rules. Because many of the decisions agitating this demand arise in a constitutional context—as, for example, when a trial judge rules vital evidence inadmissible because the police broke into a home to get it without benefit of a warrant—many people regard the judge as assuming the right to determine political issues in a manner both inappropriate and at odds with common sense.

 

These are rational, if deplorable, reasons for disapproving a judge’s performance. Sometimes the motivation is even more tenuous. On Election Day 1994 in Houston, the Republican torrent flushed off the bench a number of experienced Democratic judges whose sole disqualifying defect, it seemed, was their party affiliation. The episode echoes the account of the Athenian magistrate Aristedes, who around 450 B.C. had developed such a reputation for fairness that he was known as Aristedes the Just. When the time came for the citizenry to assess his service, Aristedes found that his popularity had evaporated. The ballot form in those simpler days was the ostracon, a pottery shard on which one wrote the name of the individual whose tenure was at risk. (Our word ostracize derives from the practice.)

As Aristedes walked through Athens on voting day, an illiterate vagabond, not recognizing him, asked him to write “Aristedes” on an ostracon. The magistrate did so, then asked the beggar if Aristedes had ever done him any injury. “None at all, but I am tired of hearing him called ‘the Just.’”

Judges today do not risk banishment on those terms. Yet even so-called retention elections can be nasty, though the ballot question is only “Shall Judge X be retained in office?” Consider Justice Penny White of the Tennessee Supreme Court, who lost her seat because she had merely joined in, not even authored, a decision that was regarded as unduly disfavoring the death penalty. In some places, to forestall such a result at the trial-court level, judges facing a retention election or a tough contest receive no criminal case assignments for a year before the election.

Sometimes a judge handing down an unpopular decision, or even a merely controversial one, risks social ostracism. When the late federal judge Frank Johnson of Alabama made and enforced desegregation orders in the 1950s and 1960s, his acceptance quotient dropped noticeably. The rulings of the Massachusetts federal judge Arthur Garrity in the 1974 Boston school case had protesters picketing his home. Two of my own colleagues have been similarly picketed and even threatened for making unpopular rulings concerning abortion law.