A panel of distinguished jurists and former jurists, including U.S. Supreme Court Justice Samuel A. Alito Jr., assembled Sept. 18 at Duke Law School to discuss the necessity of a robust judicial system in democratic societies.
The event was part of the “Neil Asks” lecture series, which honors Atlanta lawyer and community leader L. Neil Williams ’61, T ’58, who died in 2012. Each “Neil Asks” event is held at a different venue and focuses on a provocative question; at Duke, the question was “How does a strong and independent judiciary protect against threats to the rule of law?”
Williams was a lifelong supporter of his alma mater and adviser to many deans and administrators. He served as chair of the Duke University Board of Trustees from 1983 to 1988 and was a founding member of the Duke Law Board of Visitors. In 1990, he was the recipient of the university’s Distinguished Alumni Award, and in 1996 the Law School’s Charles S. Rhyne Award.
“Neil was such a great questioner,” Dean David F. Levi said in his opening remarks. “He understood people and institutions. And he understood, or he wanted to understand, their values and their missions. Breakfast or lunch with him was a seminar in how to make our small part of the world a better place.”
Joining Justice Alito on the panel were Daphne Barak-Erez, a justice on the Supreme Court of Israel, and Wallace B. Jefferson, former chief justice of the Supreme Court of Texas. Levi, the former chief U.S. district judge for the Eastern District of California and chair of the American Bar Association’s Standing Committee on the American Judicial System, moderated the discussion; he noted that all three panelists have taught at Duke Law.
Early in the hour-long exchange, the speakers acknowledged that the judiciary can never be completely autonomous: courts cannot generate their own funding, for example, so they have to rely on another part of the government to provide it. They are dependent on the law they are tasked with interpreting. And even the most independent-minded judge will experience pressure from politicians, the media, and the public.
“We want two things at the same time, and in fact, we cannot choose both,” said Barak-Erez, who before her appointment in 2012 held the Chair of Law and Security at Tel Aviv University. “We all want independent courts. At the same time, we also want courts that reflect social values, that are not detached from society.”
The need to hold the judiciary accountable can also stand in the way of its independence, noted Levi. In many state and local jurisdictions, judges must stand for election, requiring them to raise money from voters who may have one day have matters before the court, and run advertising that glosses over serious issues. Even if voters recognize their name, they may not know much about a candidate’s qualifications.
“I can walk down the middle of the street in Houston, Texas, having gotten their vote, but no one knows they voted for me because they vote based on party affiliation rather than on merit,” said Jefferson, who was the Texas Supreme Court’s first African-American justice when he was appointed in 2001.
Yet, he added, judicial elections force judges to interact with the public and hear concerns or complaints about their courts’ functioning: “The biggest advantage is the judge has to get out in the community, and ask for people’s votes, and travel the state. You can learn a lot.”
The federal judiciary, by contrast, faces little in the way of restraints, said Alito, a visiting professor of law at Duke University who teaches Current Issues in Constitutional Interpretation and courses in the Master of Judicial Studies program.
“Our constitutional design puts a lot of pressure on our federal judges to control themselves,” he said, noting that nothing similar to the veto power of the executive branch or the legislative branch’s ability to override vetoes checks the excesses of the judiciary in a regular way.
“In Federalist 78, which is the paper that talks the most about judicial power, what Alexander Hamilton says is that the federal courts are the least dangerous branch because they don’t have either the purse or the sword,” he added. “And both of those things are true, but trying to control the federal courts through the use of either of those devices creates a constitutional crisis.”
While Israel has introduced the use of an ombudsman to hear complaints about judges, Levi was skeptical that a similar approach would be adopted in the U.S.
“In our country, we have to this point at any rate preferred to have the judiciary be its own policer, to try to clean up its own act where there have been problems,” he said.
International differences aside, the panelists agreed that judicial independence, however defined, is a fundamental element of a healthy democracy, and must be safeguarded not only by lawyers, governments, and the general public, but also by judges themselves.
“A judge has to have a discipline of mind, a different way of thinking,” Jefferson said. “What aids the independence of the judiciary is courage to do the right thing, it is intellect to understand the principles that are before you, and a certain amount of wisdom, understanding that not every decision is black or white, so when you reach that decision you have to be thinking its consequence, not just for the parties in front of you, especially for an appellate court, but for the law in general in the future.”