Judging the judges

Criticism and intimidation can pressure judges to stay within mainstream views

When Judge Alfred Goodwin declared the words, "under God" in the Pledge of Allegiance unconstitutional last month, US senators denounced him as "stupid" and his ruling as "nuts."

Yet all things considered, Judge Goodwin got off pretty easy in the court of public opinion. Politicians and the public at large have proven unforgiving in recent years when judges issue unpopular decisions on hot-button issues involving patriotism, religion, or crime.

Within the past decade, congressmen have threatened to impeach some federal judges, while state supreme court justices who lack life tenure have been booted from the bench on election day based on just a single controversial case.

At some point, such public attacks directed at judges can cross the line between healthy criticism and intimidation, legal experts say. The result can be strong pressure to avoid rulings outside the mainstream, particularly for judges who face judgment themselves at the ballot box.

"Without question, there's an impact," says Lawrence Baum, a political scientist at Ohio State University. "They don't want to cast a vote that makes them electorally vulnerable."

America has a long history of bitterly denouncing court decisions and calling judges names. The Supreme Court justices who ruled that fugitive slave Dred Scott wasn't a citizen, for example, were condemned by abolitionists as criminals. And after federal Judge W. Arthur Garrity Jr. ordered the busing of students to desegregate Boston's public schools in the 1970s, angry picketers show up at his house.

A judge criticized by some as an activist meddler may be others' vision of bravery. That's just part of their unenviable task: unlike legislators, they don't necessarily pick what issues land in front of them. They can't use focus groups or polls to guide them. And inevitably, half the participants go home disappointed.

When it's time to decide a case, judges are supposed to ignore all outside influences and simply apply the law to the facts of the case before them. "In the end, it's the judge's job to think it through and say it clearly as he can," says Randall Sheppard, chief justice of the Indiana Supreme Court. "If you do that well, 99 percent of the time, people are willing to accept what you've done as a good faith call."

In reality, though, judges aren't immune from public criticism. "It's a tough situation," says former Tennessee Supreme Court Justice Penny White. "Nobody wants to be put in a position of being called names."

Ms. White was voted off Tennessee's highest court in 1996 after opponents accused her of coddling criminals and opposing the death penalty. At issue was a majority opinion she signed that reversed a murderer's death sentence and sent the case back to a lower court for a resentencing. "I was painted as a person who cares only about the criminal defendant and didn't place any value on the rule of law or victims," she says.

At the time the opinion was written, White says she and her fellow justices had no idea their decision would be so controversial. Once the criticism started, she felt helpless to fight back, given rules of judicial conduct that limit judges' ability to comment on pending cases.

The experience, she says, only hardened her belief that judges shouldn't be swayed by public opinion. "It's a slippery slope that you can't put the brakes on," says White, who now teaches law at the University of Tennessee, Knoxville. "Whose opinion do you consider? Only the majority's?" The ultimate danger, she says, is the public may come to believe judges can be pressured out of unpopular votes.

In fact, research suggests elected judges do sometimes tend to align themselves with public opinion. Appellate judges are less likely to stop executions or overturn convictions in states where they will later face voters who favor the death penalty, says Charles Franklin, a political scientist at the University of Wisconsin, Madison.

"If they're elected, they're closer to public opinion and more influenced by it," he says.

Chief Justice Sheppard says individual decisions shouldn't be influenced by popular preferences, but judges should be aware of where the public stands. "The judiciary is a special place where decisions are made in a special way," says Justice Sheppard. "But we are all part of the same democracy, so I don't think for judges to pay attention to what goes on in the world around them is altogether improper."

Pressure on state judges to stake out positions may only grow following a US Supreme Court ruling last month that struck down a Minnesota ethics code barring judicial candidates from announcing their views on disputed legal or political issues.

"It will really put them in the line of fire, where they are going to feel greater pressure to announce their positions and potentially pay the consequences," says Indiana University law professor Charles Geyh.

Despite lifetime tenure, federal judges aren't immune from criticism either. In 1996, New York Federal District Court Judge Harold Baer Jr. came under widespread attack for his opinion excluding 75 pounds of cocaine evidence from an accused drug courier's trial.

New York City police observed men drop two duffel bags in a car trunk before fleeing when they caught sight of the police. In part of the opinion that drew the most criticism, Judge Baer wrote it was not unusual for citizens to run from police in the neighborhood of Washington Heights, where he said police are viewed as "corrupt, abusive, and violent."

President Clinton's press secretary hinted that the president might ask Baer to resign but later retracted the statement. Baer ultimately reversed his ruling after hearing new evidence but says the public outcry didn't influence him at all. Looking back, Baer admits, "It wasn't what I'd call an enjoyable moment."

Still, Baer says federal judges must "do what they they think is right," and let the appeals courts judge decide whether they acted correctly.

In any controversial case, judges say they must make extra efforts to explain their decisions to the public. "Judges have an obligation to explain themselves and never take the position that they're above criticism," says Norma Shapiro, a federal district judge in Pennsylvania.

Even if judges don't directly consider public preferences at all, public opinion can still influence their decisions more indirectly. Dissatisfied voters can elect leaders who select different judges or press for laws more in line with their views. "It's a very orderly process by which public criticism ends up changing the way we think about law," Professor Geyh says.

• E-mail sterns@csps.com

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