WASHINGTON – Judicial impartiality and the role of courts are threatened because of public misunderstanding and calls to reorganize the judiciary.
This was the consensus of a two-day conference attended by six Supreme Court justices,one retired justice and roughly 250 federal and state judges,lawyers,scholars and business leaders.
Justice Stephen Breyer and retired Justice Sandra Day O'Connor co-chaired the event,”Fair and Independent Courts: A Conference on the State of the Judiciary,” co-sponsored by the American Law Institute and Georgetown University Law Center. Five of the other nine justices made an appearance,including Chief Justice John Roberts and Justices David Souter,Clarence Thomas,Ruth Bader Ginsburg and Samuel Alito.
O'Connor pointed out that,although Americans have a long history of frustration with judges,current public dissatisfaction could represent a serious problem.
“I do think that the breadth of the unhappiness being currently expressed,not only by the public officials,but in public opinion polls in the nation shows that there is a level of unhappiness today that perhaps is greater than in the past,and is certainly cause for great concern,” O'Connor said.
She appealed to those attending the conference to help change the image and therefore the future of federal and state supreme courts.
“The public needs to understand that the notion of judicial independence is not only for the benefit of judges,” O'Connor said. “Judicial independence is for the benefit of all society.”
Judicial independence is under threat at both federal and state levels,said T. Alexander Aleinikoff,dean of Georgetown University's Law School.
“It's under threat at the federal level because of unfair attacks on federal judges,” Aleinikoff said,”and at the state level,it's under threat because of the new and increasing dominance of special interests in judicial election.”
The least publicized of the three branches,the Supreme Court was created by the framers of the Constitution as a form of check on the legislative and executive branches.
The founding fathers wanted the court to be independent from public opinion and government pressure to help guarantee the constitutionality of laws enacted and enforced by the other two branches,said Kathleen Sullivan,director of the Stanford Constitutional Law Center.
“Impartiality is a hallmark of due process,” Sullivan said.
Newt Gingrich,former speaker of the House of Representatives,argued that the Supreme Court has conducted itself with the outlook that it should be the ultimate authority on the Constitution. He called this attitude “an explicit violation of Hamilton's writing the Federalist Papers.”
“I think the danger you have is that a court which imposes elite values in variance with citizens weakens its own believability and puts itself in a position of being repudiated by the legislative and executive branches,” Gingrich said.
Stanford law Professor Pamela Karlan responded to Gingrich's assertion in a later talk,saying he “threatened the Supreme Court with ruin if it reaches a result he doesn't like.”
Public confusion over the federal judicial system poses another threat,said Kathleen Hall Jamieson,director of the Annenberg Public Policy Center at the University of Pennsylvania,which conducts surveys in such fields as political communication and the effects of media.
“While public trust in the courts in the U.S. remains high,” Jamieson said,”public doubts that the courts are actually impartial,public concern about the role of money in the election of state judges,and public ignorance about basic constitutional functions served by the Supreme Court are worrisome.”
Three-fourths of those surveyed agreed that Supreme Court justices generally make the right decisions,but the same percentage also thought that justices' rulings are influenced by their personal political views. Nearly half said it is essential or very important to impeach justices who make unpopular rulings.
Panelists also debated whether district and state judges should run for election and whether elections jeopardize impartiality.
State judicial elections have grown “nastier,noisier and costlier,” said Tony Mauro,who covers the Supreme Court for Legal Times and American Lawyer Media.
“Whatever differences existed between elections for judges and those for city council or dogcatcher have disappeared,” Mauro said.
However,Indiana Chief Justice Randall Shepard supported judges running inexpensively in local elections.
“We are accountable to our fellow citizens,” Shepard said. “It's hard to argue in a democracy that that's a bad thing. I think every time one of us gets ready to write the words ‘the Constitution made me do it' ought to be a moment of personal introspection.”
Roberts reminded the group that Sept. 25 was the 25th anniversary of O'Connor's appointment by former president Ronald Reagan,making her the first woman to sit on the Supreme Court.
The chief justice also celebrated a milestone – Friday marked the one-year anniversary of his appointment.
As he enters his second term,Roberts said he is “confident” that the nation's judges and justices will muster the courage to carry out their duty. “I'm looking forward to starting the new term next week with renewed confidence in your efforts to help us protect the independence of the judiciary that is so vital to the rule of law.”