Judicial independence

  • September 6, 2017

    by Samuel L. Rubinstein, American Constitution Society Strategic Engagement Fellow

    As attorney Jack D’Aurora persuasively argued in a recent column in the Columbus Dispatch, rampant spending and lax ethics rules have contributed to a crisis of confidence in the Ohio judiciary. According to the Brennan Center’s New Politics of Judicial Elections Report, in 2014, more than $3.2 million was spent on Ohio Supreme Court races alone, the 5th most in the nation, with more than 22% of that coming from outside groups. This isn’t new, as Ohio saw more TV ads for Supreme Court elections than any state, every year in the 2000-2009 decade.

  • May 9, 2017

    by David Lyle

    President Donald Trump has received a lot of attention – and widespread condemnation – for his attacks on federal judges. But as Assaults on the Courts: A Legislative Roundup, a new report by the Brennan Center for Justice, makes clear, Trump’s conservative allies in the states have prosecuted a far-reaching campaign to undermine state courts, strip them of their constitutionally-designated powers and deny people the rights and protections the courts are supposed to protect. That these attacks on fair and impartial courts have received so much less attention than Trump’s judge-bashing tweets makes them all the more dangerous.

    Attacks on state courts are especially troubling because these courts are the only judicial bodies most American will ever encounter. State courts handle 95 percent of the nation’s judicial business, and decide cases involving vitally important issues ranging from voting rights to criminal justice to reproductive freedom and environmental protections. As a result, powerful conservative interests have flooded state court elections with money over the past decade. As a series of ACS-sponsored studies have shown, this spending undermines justice in our courts.

    The Assaults on the Courts study documents the new fronts conservative interests have opened up in their war on the courts in the form of legislative actions that strips courts of their powers or the ability to do their jobs. It finds that:

     This year, at least 41 bills in 15 states have targeted state courts, including efforts to control the ways by which judges reach the bench, to unseat judges currently on courts and generally to restrict courts’ jurisdiction and power. While lawmakers have employed similar tactics in the past, one new trend is a group of bills that would allow state legislatures to override or refuse to enforce court decisions, potentially undermining the role of the courts in our constitutional system. So far this year, nine such bills have been introduced in seven states.

  • April 24, 2017
    Guest Post

    by Laura W. Brill, Partner, Kendall Brill Kelly

    It is a pretty safe bet that if, after losing a motion for a preliminary injunction, a fourth-year associate were to go on the radio and say that she was amazed that some judge sitting on an island in the Pacific Ocean could issue an injunction against her client, that associate would not have a job for long. And she would not help matters if her main defense was, “Nobody has a sense of humor anymore.”

    Every lawyer knows this.

    What do we make then of Attorney General Jeff Sessions’ comments in response to the preliminary injunction on the president’s travel ban that was issued by the Hon. Derrick K. Watson in federal district court in Hawaii? And what are we as lawyers going to do about it?

    Like so many of you, I have been asking myself questions like this since the presidential election. I still don’t know the answers. But I do believe that this administration’s repeated attacks on the legitimacy of our courts pose a serious threat to the fair administration of justice and the protection of constitutional rights. As lawyers, we have a responsibility to articulate the values that we think are important to a constitutional democracy and to provide a counterbalance so that the public will not be misled. That is why I have chosen to make my views known and to ask other lawyers and law professors to join me in expressing our support for judicial independence. 

    Two months ago, in response to President Donald Trump’s disparaging comments, in which he referred to the Hon. James L. Robart as a “so-called judge” after the injunction barring the first travel ban, I wrote a public letter to Attorney General Sessions, calling on him to ask the president to stop personal attacks on judges and on the legitimacy of the courts.  In a matter of days, 6,400 lawyers and law professor from across the country and the political spectrum signed the letter.

  • April 10, 2017

    by Caroline Fredrickson

    Soon after President Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, the Judicial Crisis Network (JCN)—a conservative secret-money group that spends millions of dollars on ads attacking judges—promised to spend up to $10 million in support of his nomination. Representing a major attack on the fairness and impartiality of our judicial branch, this same group, among many other organizations, has been increasingly involved with big-money efforts to help elect or attack their favored state supreme court judges—all behind a curtain of secrecy.

    When asked directly by Sen. Whitehouse about why these groups are so interested in supporting his nomination, Gorsuch responded, “You’d have to ask them.” For a Supreme Court candidate, this betrays an inexcusable lack of understanding and concern for the menacing role that secret money has played in this Supreme Court nomination process and in many of our state judicial elections. “We don’t know because it is dark money,” Sen. Whitehouse countered a frustrated Judge Gorsuch about the secret money group, “I can’t [ask them]. I don’t know who they are. It’s just a front group.”

    The $10 million was in addition to the $7 million that JCN already spent in its effort to distort the record of Chief Judge Merrick Garland, Obama’s Supreme Court nominee who Republicans and JCN itself previously praised.

    At the state level, the group recently spent big to help persuade Arkansas voters to reject judicial candidates who JCN argued would favor injured individuals over corporate defendants. JCN spent far more money than any of the candidates. One of its ads criticized the Arkansas Chief Justice for a unanimous ruling to strike down a voter ID law, which JCN claimed could lead to “illegal immigrants voting.” Arkansas Business said the JCN ads should be “categorized as lies.” And in 2012, JCN ran a revolting last-minute ad attacking a Michigan Supreme Court candidate, exploiting the tragic death of a U.S. soldier to lie about the judicial candidate’s record. A recent report from the Michigan Campaign Finance Network found that $3.4 million was spent on the 2016 supreme court race there, with 50 percent of the money from secret sources.

  • April 5, 2017
    Guest Post

    by Nat Stern, John W. & Ashley E. Frost Professor, Florida State University College of Law

    The ability of politicians to utter falsehoods with legal impunity is evident today to perhaps an unprecedented degree. Less appreciated is that the overwhelming majority of judges in America qualify as politicians in the basic sense that they are chosen through some form of popular election. In the case of candidates for judicial office, however, nearly half of states codes contain a “misrepresent clause” barring deliberately false factual statements by judicial candidates.

    The basis for this ban is understandable and even admirable. In contrast to legislators and elected executive officers, judges are expected to serve as detached and impartial arbiters of the law. Dishonest campaign tactics may then be viewed as impairing the administration of justice, tarnishing the public image of the judiciary or even revealing a disqualifying character trait. Nevertheless, the misrepresent clause—as opposed to generally applicable bans on certain kinds of dishonesty like defamation and fraud—probably violates the First Amendment. This conclusion derives mainly from the confluence of three Supreme Court doctrines: stringent protection of political speech, application of this doctrine to restrictions on judicial campaign speech and refusal to regard false expression as categorically unprotected.

    It is a commonplace that unhindered political speech is essential to self-government and therefore lies at the heart of the First Amendment. Thus, the Supreme Court has repeatedly affirmed the privileged place of political expression in the hierarchy of First Amendment freedoms. Nor has the Court left any doubt that political campaign speech falls squarely within this protection. Accordingly, the Court has subjected restrictions on political expression to rigorous scrutiny.