Fair, Impartial, and Independent Courts

By Nathan L. Hecht


The president’s many denunciations of the judiciary are very troubling: accusing courts of usurping power and judges of being politically motivated despots as well as thwarting the executive at every turn, warning of judicial tyranny undermining the Constitution, and then going to the extreme of calling for the impeachment of Supreme Court Justice . . . Samuel Chase. I refer, of course, to President Thomas Jefferson. He deplored judicial independence.

Jefferson attacked the principle head-on. Others have taken a different tack, acknowledging the importance of judicial independence but decrying its absence, pointing to particular case decisions as evidence. Upset by Supreme Court decisions holding his New Deal unconstitutional, Franklin Delano Roosevelt’s 1937 court-packing plan did not propose to make the judiciary less independent, but rather, to expand the court with justices whose views aligned with his. Along with Jefferson and FDR, political leaders of all stripes have long criticized judicial independence both as a principle and in practice. Some, like Jefferson, argue that the very idea is contrary to democratic principles, that judges like others in office should follow the will of the people rather than some abstract rule of law. Others, like FDR, argue that judicial decisions are independent only if they align with a political majority’s views. The criticisms are not partisan. They come from all sides, from the left and the right, but arrive at the same place. Whether the argument is that judges should not be independent, or that they should be independent but aren’t, the bottom line is the same: judges shouldn’t take political sides in deciding cases.

To be sure, judges are not above criticism. And judges, like all public officials, must account to the people for their stewardship of power. But judges have no constituencies. They are responsible to the people for, and only for, their adherence to the rule of law. A judge may be criticized for not following the law, but when judges follow the law, even against the popular will of the time—especially against the popular will of the time—they have done their job.

Judicial independence is not readily understood, especially in a culture as lacking in civics education as ours. Why should any government institution not be an expression of the popular will? The answer is because ours is a government of law, not of men. The legal profession knows this and appreciates how essential to our democracy the fair and impartial administration of the law by judges is. So it falls principally to lawyers to defend judicial independence. The American Board of Trial Advocates has been especially active, developing a “Protocol for Responding to Unfair Criticism of Judges” for use by each regional chapter. The Texas chapter has a standing committee to ensure a strong, published response to personal attacks on judges and their integrity that threaten judicial independence.

But judges must also do their best to demonstrate the value of the independence the people have given them. Importantly, judges earn the public’s respect and trust, not just in their decision-making, but in their commitment to improving the justice system they serve. As president of the national Conference of Chief Justices, I have the opportunity to view the workings of state courts across the country. With that perspective, I am especially proud of the Texas judiciary. There are always needed improvements, but they should not eclipse our many achievements. For example:

Each year, legal aid providers help hundreds of thousands of Texas’ most vulnerable citizens, including veterans, victims of domestic violence, the elderly, children, tenants, and employees. For many years, Travis County District Judge Lora Livingston has worked hard to make the promise of justice a reality for the very poor. Her leadership and inspiration have brought much credit to the Texas judiciary. Her efforts invoke trust in judicial independence.

Texas specialty courts, also called problem-solving courts, adapt the law to fully achieve the goals of criminal justice while reaching rehabilitation that is restorative for the accused and positive for society. Texas has specialty courts for drug and DWI cases, as well as cases involving veterans and mental health problems.1 Kaufman County District Judge Mike Chitty is president of the Texas Association of Specialty Courts.2 For many years, Lubbock County District Judge Ruben Reyes has not only presided over a drug court but has helped train other judges and served as chair of the National Association of Drug Court Professionals Board of Directors. Texas has more veterans courts than any other state. Travis County District Judge Brad Urrutia manages a veterans treatment court that, like many others, helps those who have volunteered to protect our nation and her values regain their footing when they return home. Burnet County Justice of the Peace Roxanne Nelson, a member of the Judicial Commission on Mental Health,3 leads seminars for justices of the peace on the magistration of mentally ill defendants.

College Station Municipal Judge Ed Spillane has partnered with the Texas Lawyers’ Assistance Program4 to reach out to fellow jurists on issues of stress, burnout, compassion fatigue, substance use, and mental health. Spillane has also been a leader in Texas and a national spokesman for reforming the collection of fines and fees in traffic cases to reduce jail time for non-payment, which burdens defendants and taxpayers alike.

For many years Midland County District Judge Dean Rucker (ret.) has worked with the Supreme Court Children’s Commission5 to train judges in handling cases involving children to ensure full communication among courts handling the cases, better collaboration among the professionals involved, and the best outcomes for children and families.

The district and county judges in El Paso are working together to improve all aspects of the justice system, including court performance measurement, bail reform, and family law reforms.

Travis County District Judge Julie Kocurek not only survived a vicious assault by a criminal defendant, she used her situation to advocate courageously for legislation providing better courthouse security throughout the state. Texas judges, court staff, lawyers, litigants, witnesses, and jurors are all safer because of her. She is a hero not just to Texas judges but to all Texans.6

Though constitutional county judges are more responsible for managing Texas counties than for handling cases, their administrative work builds public confidence in the judiciary. Williamson County Judge Bill Gravell, formerly a justice of the peace, is an outstanding example. Last year, the Williamson County Commissioners Court voted to partner with Lone Star Justice Alliance in the Second Chance Community Improvement Program, providing services to emerging adults in the justice system.

The Texas Judicial Council, assisted by the Office of Court Administration, has developed the Centers of Excellence Program to train and support judges and court staff in improving the administrative performance of their courts.7 This benefits lawyers, litigants, and the public alike. These are Texas courts at their very best. The first three judges to complete this demanding program are Nueces County District Judges Missy Medary and Inna Klein, and County Court at Law II Judge Victor Villarreal in Webb County.

Villarreal also makes a tremendous contribution to civics education by conducting courtroom mock trials—like Lax Luther v. Soup R. Man—in which school students take part to learn the importance of access to justice. The inspired, age-appropriate materials are written by state Sen. Judith Zaffirini.8 Judge Roy Ferguson, of the 394th Judicial District Court, invites students to participate in jury selection in cases like State v. Jedi Luke Skywalker to learn about the importance of the jury system.9 (The district covers five counties—Brewster, Culberson, Jeff Davis, Hudspeth, and Presidio—and 20,000 square miles.) Both programs aim at improving civics education in secondary schools as advocated by retired U.S. Supreme Court Justice Sandra Day O’Connor and current Justice Sonia Sotomayor.

I have named here but a handful of the hundreds of Texas judges working hard voluntarily to improve our judiciary. They are judges of all stripes from one end of the state to the other. They have different dockets but share this commitment: to demonstrate that the Texas judiciary is worthy of the trust people must place in judicial independence. They encourage us all.

In his year-end report on the federal judiciary, Chief Justice John Roberts described the efforts of federal judges to strengthen public trust in an independent judiciary. He concluded powerfully:

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. We should reflect on our duty to judge without fear or favor, deciding each matter with humility, integrity, and dispatch. As the New Year begins, and we turn to the tasks before us, we should each resolve to do our best to maintain the public’s trust that we are faithfully discharging our solemn obligation to equal justice under law.10

Texas judges will do the same.TBJ



is chief justice of the Supreme Court of Texas.

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