I first became aware of attacks on judicial independence as a young lawyer fresh out of law school in South Carolina, living in Virginia, and having the very good fortune to be a law clerk for United States District Court Judge Robert R. Merhige Jr.
It was the era of desegregation, 1969 in the South. Judge Merhige, in his words, was “just a public servant charged with calling balls and strikes consistent with the rule of law.” He did not solicit controversy, but like so many of our judges, it seemed to come his way.
In particular, his docket was full of desegregation cases. Judge Merhige did not duck. Busing students from one school to another became a remedy to desegregate schools. Many people were apoplectic at the thought and their feelings soon became venomous — the obvious target to strike being Judge Merhige.
Threats to abduct his young son were commonplace and the family dog was shot in their yard. Death threats aimed at his wife and at him personally, calls to burn his house, hangings in effigy, and efforts to run him out of town abounded.
U.S. marshals were dispatched to protect him. Law clerks hid pennies on his car each morning and checked them each afternoon to make sure that the car had not been tinkered with.
The threats had one goal in mind — to hijack the judge’s free exercise of judgment and discretion within the confines of the law, attempting to control through intimidation and threats how he decided these cases.
The phrase “judicial independence” is often misunderstood. Chief Justice Michael A. Wolff of Missouri, in his 2006 State of the Judiciary address to the Missouri General Assembly, stated it best:
“‘Independence,’ is both overused and misunderstood. It should not be interpreted, either by the public or by any judge, to mean that a judge is free to do as he or she sees fit. Such behavior runs counter to our oaths to uphold the law, and any attempt to put personal beliefs ahead of the law undercuts the effectiveness of the judiciary as a whole. Better stated, ‘independence’ refers to the need for courts that are fair and impartial when reviewing cases and rendering decisions. By necessity, it also requires freedom from outside influence or political intimidation, both in considering cases and in seeking the office of judge. The people rely on courts to protect their access to justice and to protect their legal rights.”
Judge Merhige, among others at the time, such as Judge Frank M. Johnson from Alabama and Judge James B. McMillan from North Carolina, had the strength and character to deflect intimidation and interference during desegregation.
Imagine, however, what would have happened to a large segment of our aggrieved citizens had the hijacking been successful and the opinions that followed been based not on the rule of law, but on the outside scare tactics of those who employed them. Imagine what would have happened to the perceived dignity of our judicial system. And, imagine where we might be now in our development.
The assault on judicial independence that reared its ugly head with the desegregation cases was extreme. However, there are many examples that are more subtle.
Intimidation may show its face in the form of those who hold positions of power in government, and are unhappy with a court’s decision, quietly manipulating the legislature or others in a way not advantageous to the court system. Lately, we have observed what seems to be an increase in manipulative activity from politicians and leaders. We have seen it come to bear openly and with hostility during judicial elections, and in efforts to cut salaries and courts’ authority.
Those who attack judicial independence do so fearlessly for a couple of reasons.
First, in their view, there is no political capital to be lost in openly and unfairly attacking judges and judicial systems.
Second, as Alexander Hamilton noted in Federal Papers No. 78, many years ago, courts and judges are not structured to return fire, and those who would attack them know they can do so without rejoinder: “The judiciary, on the contrary (to the Executive and Legislative branches), has no influence over either the sword or the purse.”
As such, the judicial branch is the least powerful of the three branches of government and is ill-equipped to protect itself from attacks by the other two branches.
When such attacks occur, it is we, the citizens, who lose should we choose to do nothing and allow the intimidation to achieve its goal.
Some criticism of what judges and courts say and do is fair game. In fact, the system recognizes mistakes that need to be corrected. We have a process in the form of our appellate courts, including the United States Supreme Court.
But where the incursions cross the line and threaten judicial independence, it is the obligation of the public, and lawyers in particular and the professional organizations of which lawyers are a part, to address threats to judicial independence. In so doing, we are protecting not only our legal institution, but the citizenry as well.
*This op-ed originally appeared in the Richmond Times-Dispatch.
Michael W. Smith is president of the American College of Trial Lawyers and chairman of Christian & Barton, a Richmond law firm. Contact him at [email protected]. Thinking of submitting an op-ed to the Washington Examiner? Be sure to read our guidelines on submissions.
