The Key to Balance: A Fair and Impartial Judiciary

The Bencher—March/April 2018

By Raymond T. (Tom) Elligett, Jr., Esquire

On a daily basis, state and federal courts provide a forum to resolve civil disputes between parties and for governments to prosecute alleged crimes. While less frequent, but more important, courts are available to protect our rights. Without a fair and impartial judiciary, all these functions would be at risk.

There is always a party further up the food chain. A business may have more economic clout than a particular individual. But that same business could be destroyed by anti-competitive practices of a larger entity. And any of them could be targeted for oblivion by governmental action. There is a scene in the film “Pirate Radio” where one official says the whole point of being the government is if you don’t like something, you can make up a new law that makes it illegal. A fair and impartial judiciary prevents such abuses.

Groups in power because of political fortunes at a specific point in time forget they could soon be the minority. If judges were dependent on the approval of a religious or political group at a moment in time, how would litigants who were not in that group fare?

A fundamental premise of our democratic system of government is the balance of power between the three branches of government. Thomas Jefferson wrote such a separation of powers should work so that no single branch can gather sufficient power to exercise despotic control over the whole nation. Of course, neither should any two branches working together.

Totalitarian regimes restrict the role of the judiciary. As the 1961 film “Judgment at Nuremberg” depicts, when Hitler took power in Germany, he removed judges who were hostile to his program and replaced them with sympathetic ones. He also eliminated the right of appeal.

Proof of the effective balance the judiciary provides manifests in relatively recent cases that displeased sitting presidents—when even justices they appointed voted against the presidents’ positions. This happened in the Nixon tapes case in 1974 and in Clinton v. Jones in 1997.

Some use the phrase “judicial activists” to describe judges whose rulings they disagree with and “strict constructionists” for those who rule as they prefer. These labels are empty rhetoric. Often, people may be upset because a judge followed the law that left the judge no choice.

For example, if a person is arrested on a bailable offense, the judge must set bail. That some members of the public or the victim’s family may want the alleged perpetrator locked up immediately and permanently does not make the judge an “activist.” To the contrary, that judge is following the law, which is often established by the legislature.

In his 2004 year-end report the late (and recognized judicial conservative) Chief Justice of the United States William H. Rehnquist blasted political conservatives who advocated removing judges from office based on their decisions: “The Constitution protects judicial independence, not to benefit judges but to promote the rule of law: Judges are expected to administer the law fairly, without regard to public reaction.”

In a September 2005 speech, then-retiring Associate Justice of the Supreme Court of the United States Sandra Day O’Connor warned against those who seek to destroy a fair and impartial judiciary for “nakedly partisan, result-oriented reasons.” She observed, “the experience of developing countries, former communist countries, and our own political culture teaches us that we must be ever vigilant against those who would strong-arm the judiciary into adopting their own preferred policies.”

There is nothing wrong with courts announcing principles of law (or “making law”), which they often must do in areas where the legislature has not acted or not acted clearly enough. In an interview with lawyer and legal writer Bryan Garner, Chief Justice of the United States John G. Roberts, Jr. observed that it sometimes appears Congress purposely fails to provide clarity in some legislation, leaving it to the courts to resolve disputes the legislators would not.

Thus, those who fault the judiciary for not following the loudest public whims have either forgotten—or are more likely ignoring—their civics lessons on the role of the judicial branch. The executive and legislative branches of government are elected and may be subject to changes in the will of the voters. The judicial branch serves a different function.

A fair and impartial judiciary ensures that citizens’ basic rights are not ignored in the name of the most popular or vocal position of the moment. As a late Florida Supreme Court justice observed, “the judiciary has ever been the poor man’s shield against oppression, the rich man’s defense against the mob.…It will save the minority from the tyranny of the majority and protect both from the ruthless hand of the demagogue.”

A prior iteration on this topic closed with an example from a career day at an elementary school. To explain the role of protecting rights, the students considered a fictional law that made it illegal for blond children to have any toys. The kids understood how such a law would be unfair and that a fair and impartial court would strike it down. A few did focus on whether their hair was dark enough to avoid the law or whether they could dye their hair darker. Perhaps there were some aspiring lawyers in the class.

As citizens who practice in our court systems, we lawyers should respond when we hear ignorant or unfair criticism. Ask the individuals who criticize a court for ensuring an accused’s rights are protected or that an injured person receives fair compensation if they would feel the same if the accused or victim were their child or parent?

(An article on this topic appeared in the January/February 2007 issue of The Bencher. That we are still discussing the topic raises a question as to what has changed.)

Raymond T. (Tom) Elligett Jr., Esq. is a partner at Buell & Elligett, P.A., in Tampa, FL. He is a Master in the J. Clifford Cheatwood AIC and a member of the American Inns of Court Editorial Board for The Bencher.

© 2018 Raymond T. (Tom) Elligett Jr., Esquire. This article was originally published in the March/April 2018 issue of The Bencher, a bi-monthly publication of the American Inns of Court. This article, in full or in part, may not be copied, reprinted, distributed, or stored electronically in any form without the written consent of the American Inns of Court.