Tuesday, May 24, 2005

Judicial Criticism-Not a Threat

This from Professor Volokh regarding a Boston Globe piece:

Maintaining public trust in the judicial system isn't the most important goal, and sometimes serving other goals (such as, for instance, following the law when the law really does require an unpopular result) means having to do things that undermine public trust in the judicial system.

While I agree with the start of the sentence, I am not so sure about the conclusion. I don't see where following the law (even if the ultimate result is unpopular) necessarily undermines public trust in the judicial system--at least not on the whole. As a nation, we have a great respect for the rule of law. We may not like the law. We may want to change the law--and regularly do so. We may despise the law. But we respect the law because of its very nature. The law is a body of rules that cares not one whit how we feel about it, unlike judges.

Try as they might, judges unintentionally feel something when criticized by those outside of the legal community. A trial judge may feel upset when an appeals court over turns her decision, but most good trial judges absorb the criticism of the appellate judges in a constructive manner, striving to do their jobs better. But when people outside the legal system level charges of "judicial activism" (what ever that means) or decries the court as an undemocratic institution that should be brought to heel, I would find a judge who remains detached about the matter to be a rare find indeed. Particularly of concern is the partisan relativity of the charges. One person's activist is another person's champion.

I think that, over time, people will move beyond this judicial criticism. Although I was not alive, I would imagine that such periods of time are, like many things, cyclical. I can imagine the same thoughts about the Warren Court and their activities, or New Deal era court and their activties. The difference between judicial criticism and the criticism of other democratic institutions is that courts and the law evolves very slowly, over decades rather than years. Most of us were not alive or cognizant of the last round of vociferous judicial criticism.

Criticism comes in cycles and for the most part is healthy in nature. Periods of judicial criticism forces us as a nation to examine what kind of legal system we want. As a nation, judicial criticism forces us, and the judges who serve us, to re-evaluate what judicial principals we hold dear.

Because the law remains unfeeling about our concerns, it is not surprise that judges will leap to its defense. But I think Americans are more savvy about the issue than most reporters and pundits give them credit for. Americans can separate the judge from the system. We can therefore criticize individual judges with no impact on the general feeling about the legal system as a whole. For the most part, Americans will continue to respect the rule of law and the legal system--even if we question the participants in the system.

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