In an address to the opening assembly of the ABA Annual Meeting in Chicago, Illinois in August 2009, United States Supreme Court Associate Justice David H. Souter lamented that (unlike the readers of this column) fully two-thirds of U.S. citizens cannot name all three branches of government.
At the state legislature we see the judicial branch of government discussed as if it were a governmental agency or program and not the third branch of government charged with protecting the rights of all citizens and fulfilling its constitutional role in maintaining checks and balances along with the executive and legislative branches of government.Robert Maynard Hutchins (1899–1977), educator, educational philosopher, and former dean of Yale Law School warned:
The level of understanding, or rather lack of understanding, of basic civics is an actual threat to the future stability of the Republic. If our nation’s populace does not understand the role of the three coequal branches of their government, then it will not be long before the future stability of the foundation for that government will be susceptible to becoming irrevocably compromised. It has been said that the death of democracy is not likely to be an assignation from an ambush; it will be a slow extinction from apathy, indifference, and undernourishment.
We are all aware of recent decisions that pose a significant risk to the fair and impartial administration of justice by opening the door to partisan, special-interest-financed elections of judges. Likewise, we are equally aware of the strain that budget cuts have imposed upon the proper functioning of the judicial system in Minnesota.
Writing in The Federalist, No. 78, Alexander Hamilton (1755–1804) said:
The complete independence of the courts of justice is peculiarly essential in a limited constitution. By a limited constitution, I understand one which contains specified exceptions to the legislative authority—limitations of this kind can be preserved in practice no other way than through the medium of courts of justice, whose duty it must be to declare all acts contrary to the manifest tenor of the constitution, void. Without this, all the reservation of particular rights or privileges would amount to nothing.
Associate Justice Sandra Day O’Connor (retired) has said, “the nation’s survival is dependent on its citizens’ knowledge of its government,” and she further observed that “knowledge of the constitution and the role of our courts is not handed down in the gene pool—each generation must learn about our system of government and the citizen’s role.”
While defense of the independence of the judiciary as well as adequate funding of the judicial system are the concern of all citizens, and not just judges or lawyers, we, as lawyers and judges, have a special responsibility to carry the defense.
Meeting the Threats
The two most imminent threats to the judicial system are:
1. Underfunding of the judicial branch (including all of its component parts such as courts, public defenders, prosecutors, legal aid services, and law enforcement). Budget cuts have strained the state’s judicial system nearly to the point of breaking down. The societal consequences of the impact of such a condition on the rule of law are absolutely unacceptable.
2. The threat to judicial independence through partisan influence and exorbitantly financed judicial election activity. A 2007 U.S. Chamber of Commerce survey ranked Minnesota courts as one of the top three judicial systems nationally for impartiality, competence, and fairness. Proposed legislation providing for a constitutional amendment as proposed by the Quie Commission adequately addresses this threat. Minnesota citizens should have the right to decide for themselves on this proposal designed to resist any erosion to Minnesota’s richly deserved tradition of judicial excellence, fairness, and impartiality.
Call to Action
What can supportive judges and lawyers, do?
1. We can spread the word in our communities and to our lawmakers of the role of the judicial system in our constitutional form of government and the need to assure that all the component parts of the system are adequately funded, including the dire consequences that follow if they are not.
2. We can educate citizens as to the looming threat to the continuance of our fair and impartial judicial system and the proposal which will allow Minnesota voters to decide for
themselves whether they want to retain judges through an informed evaluation process.
3. Lawyers contribute to LawPac so that this and other legislative goals of the MSBA can be met. If each of the over 16,000 lawyer-members of the MSBA made even a modest contribution to LawPac there would be a powerful tool available to support these legislative initiatives.
To whose good? … To the good of all Minnesota citizens!