In his 2019 Year-End Report on the Federal Judiciary, U.S. Supreme Court Chief Justice John G. Roberts observed:
"We have come to take democracy for granted, and civic education has fallen by the wayside. In our age, when social media can instantly spread rumor and false information on a grand scale, the public's need to understand our government, and the protections it provides, is ever more vital. The judiciary has an important role to play in civic education."1
After observing several ways the judicial system and its partners promote civic education, he added an important request to the judges:
"I ask my judicial colleagues to continue their efforts to promote public confidence in the judiciary, both through their rulings and through civic outreach. We should celebrate our strong and independent judiciary, a key source of national unity and stability. But we should also remember that justice is not inevitable."2
Our Oakland County judges have long embraced the mission of civic outreach, and the OCBA has many public outreach and educational programs (see sidebar). But when the Chief Justice notes that "justice is not inevitable," he means that lawyers and bar associations, not just judges, must also defend the rule of law. And when judges are the ones being attacked, the role of attorneys becomes particularly critical.
Recent history provides many examples. In 2017, a Seattle federal judge issued a temporary restraining order staying President Donald Trump's "travel ban." Within moments, his home address and his family members' names and phone numbers were circulating online. Angry callers flooded the chamber's phone lines. After Trump then called the ruling "ridiculous" and made by a "so-called judge" whose ruling would let bad people "pour" into the country, the judge received more than 42,000 calls, letters and emails - 1,100 of which U.S. Marshals determined to be "serious threats," including more than 100 death threats.
Closer to home, in 1999, a plaintiff 's attorney who prevailed for his client in the trial court had the verdict overturned by the Michigan Court of Appeals. The attorney then launched a stream of obscenities and personal attacks at the judges.3 He later stipulated that his conduct violated the Michigan Rules of Professional Conduct and was reprimanded.
Our system of electing judges has led to similar attacks. The 2008 Michigan Supreme Court race marks the modern low point, where ads portrayed Chief Justice Cliff Taylor asleep on the bench and a "good soldier" of big business, and his opponent, Diane Hathaway, as a goldbricking terrorist sympathizer who gave light sentences to sexual predators. In the words of one watchdog group, it was an "orgy of negativity."4
I recognize that under the Rules of Professional Conduct, the First Amendment, civility principles and our social norms, delineating between permissible (even if crass) commentary and contemptable "attack" is not always easy. My focus here is on the erosion of the rule of law. If judges are personally attacked for their rulings, it delegitimizes our entire justice system. Judges can and do make wrong decisions. But to attack a decision as being motivated by anything other than a good faith application of the law, or to attack a judge as simply a politician in robes, threatens the very core of the rule of law, what Justice Stephen J. Markman described as "perhaps the greatest legacy of our civilization."5
A particularly insidious aspect of these attacks is that judges cannot - or often will not - fight back themselves. The Michigan Code of Judicial Conduct, Canon 3(A)(10), does allow judges to defend themselves: "A judge may respond directly or through a third party to allegations in the media or other forms of communication concerning the judge's conduct in a matter." But that power is circumscribed by Canon 3(A)(6), which provides that "a judge shall not make any public statement that might reasonably be expected to affect the outcome or impair the fairness of a matter pending or impending in any court." In reality, judges are loath to respond to the rock-throwers lest they be accused of affecting the fairness of a pending matter. What's more, ethics opinions in other states suggest that commentary by the bench on an active case may be problematic.
Judges across the country agree that while attacks on judges of this sort may have always existed, they are getting worse.6 This has led some state bar associations7 and the American Bar Association to speak out on the issue and go so far as to provide a "rapid response" guide to unjust criticism of the judiciary.8 Here in Michigan, where our state bar is restricted by Keller from certain sorts of speech, it falls even more to individual attorneys and local bar associations to defend the judiciary.
So, what can you do? Either through the OCBA or the State Bar of Michigan, get involved in civic education, especially if you have school-age children. The ABA publication referenced previously lists a number of practical steps that attorneys, as citizens, can take to defend the rule of law. But perhaps the most important action is to be a living example. In a full-throated defense of attorneys as public citizens, Justice Stephen Breyer opined that "we have a related special responsibility, that of helping to preserve the traditions, habits, expectations of behavior that make the Constitution's guarantees of freedom a reality."9 He noted that the best way to teach is by example:
"Every time we represent a client, argue in court, participate in a public or professional meeting, take on pro bono work, we set an example. With every action - and inaction - we send a message to our peers and, more importantly, to the next generation. That message can say that standards matter, that law matters, that civic life matters, that participation matters. The lawyer's role as teacher is his most important role in public service, for it encompasses all the others."10
If we want to make a difference, we can all start with ourselves. And if you want to have a bigger impact, join us at the OCBA.
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Footnotes
1. https://www.supremecourt.gov/publicinfo/year-end/2019year-endreport.pdf.
2. Ibid.
3. This is a family publication, but you can read the details in Grievance Adm'r v. Fieger, 476 Mich. 231, 236, 719 N.W.2d 123, 129 (2006).
7. E.g., the New York State Bar Association (https://www.nysba.org/WorkArea/DownloadAsset.aspx?id=78941), the Connecticut Bar Association (https://www.ctbar.org/docs/default-source/publications/connecticut-lawyer/ctl-vol-29/2-janfeb-2019/3-janfeb-2019---rule-of-law-article.pdf?sfvrsn=5b9b4506_4) and the Virginia Bar Association (https://www.thecenterforruleofl aw.org/).
9. https://www.supremecourt.gov/publicinfo/speeches/sp_10-10-00.pdf.
10. Ibid.
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Daniel D. Quick, of Dickinson Wright PLLC, is the 87th president of the Oakland County Bar Association.
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OCBA public education and public access programs
Speakers Bureau - The OCBA's volunteer speakers are experts at sparking exciting conversations. Speakers are available to present on a variety of topics of interest to students and community groups.
Mock Trial for Elementary Schools - A legal education program facilitated by volunteer attorneys for students in grades 2-6 in Oakland County schools. Students learn about the court system through interactive role play and a field trip to a local courtroom.
Youth Law Conference - A one-day interactive program for high school juniors and seniors wherein they discover exciting facts about the legal process through topics that are important to them. This year's event takes place on November 10, 2020, at the MSU Management Education Center in Troy.
Judicial Candidate Forums - The OCBA and its partners host Judicial Candidate Forums for local judicial races where there are contested seats so voters can learn more about judicial candidates through candidates' answers to important and thoughtful questions.
Senior Law Day - Senior Law Days provide information about legal issues important to our growing senior citizen population and/or their adult children.
Free Legal Aid Clinics - In partnership with Lakeshore Legal Aid, Legal Aid and Defender, and the Family Law Assistance Project, the OCBA hosts free Legal Aid Clinics in various Oakland County locations throughout the year.
The OCBA's public education and public access programs are made possible by the hard work of our Law-Related Education (LRE) and Providing Access to Legal Services (PALS) committees, and through grant funding from the Oakland County Bar Foundation.
If you would like more information on how you can get involved in one or more of these programs, contact Merri Lee Jones at mjones@ocba.org or 248-334-3400.
Published: Wed, Apr 22, 2020
