Michael S. Greco
Immediate-Past President, American Bar Association
“Judicial Courage in the 21st Century”
Massachusetts District Court - 2007Judicial Educational Conference
Smith College
Northampton, Massachusetts
June 13, 2007
It is a great pleasure to be here among so many friends and colleagues. I thank Chief
Justice [Lynda M.] Connolly for her leadership, and for inviting me to join you today. I am
honored to have the opportunity to address such a distinguished audience.
As a member of the bar and citizen, I have great respect for the judiciary, and an abiding
interest in protecting its role in our democracy. During my 35 years at the bar I have been
involved with the judiciary in various contexts: as a trial lawyer in state and federal courts; as a
member for eight years of Governor Weld’s Judicial Nominating Council; as a member of U.S.
Senators Kennedy and Kerry’s Federal Court Judicial Commission, which recommended five
new Massachusetts federal district judges confirmed in 1993; and as member for three years
and then chair of the ABA Standing Committee on Federal Judiciary, which evaluates
qualifications of the President’s federal court nominees.
Several years ago I also chaired the ABA Task Force on State Judicial Selection and
Campaigns, which studied judicial elections in the 38 states that elect judges. The Task Force
documented the harmful effect on the public’s trust and confidence in judges resulting from
negative and often shocking judicial campaign advertising; from unprecedented spending by
judicial candidates; and from extraordinary spending by interest groups such as the US
Chamber of Commerce.
Mounting pressures and attacks on the judiciary, and the insufficient and decreasing
resources being provided by legislatures to the judiciary throughout the country, give me serious
concern. For the last several years courts have been experiencing serious challenges that
threaten to undermine a core concept of our justice system and our republic: judicial
independence. Moreover, there has been an unhealthy lack of constructive and respectful
dialogue among the three branches of government at both the federal and state levels. When
citizens hear members of the legislative and executive branches make unfounded attacks on
the judiciary, their respect and confidence in our institutions of government suffer.
The Terry Schiavo case illustrated this problem most vividly. We witnessed
irresponsible members of Congress outrageously attacking Florida state court judges for doing
what judges are expected to do – find the facts, apply the law, and administer justice. When
people such as former Texas Congressman Tom Delay shamefully bash the judiciary for
political or other gain, at the very least citizens are confused, and at worst their trust and
confidence in the judiciary is dangerously compromised.
It should be of concern to all Americans that, either inadvertently or intentionally, zealous
but misguided federal government agencies and leaders are attacking the independence of both
the legal profession and judiciary. The American Bar Association House of Delegates has
adopted numerous policies to protect judicial independence and court resources and
compensation. Last August the House overwhelmingly opposed legislation that would create an
Inspector General position in Congress to oversee judicial conduct.
At the state level, too, radical interest groups are waging war on the independence of the
judiciary. Fortunately, South Dakota voters defeated a ballot initiative that would have stripped
judges of immunity from lawsuits filed by those who disagree with a judge’s decision. The
South Dakota bar deserves kudos for its campaign to educate voters about the disastrous
effects such a measure would have had on all aspects of South Dakota society, but the
ill-conceived idea may live on. Supporters of the measure have vowed to put the issue before
voters of other states.
Courts also face budget cuts that have forced some states to close courthouses, limit
hours of public access, delay processing of all but the most serious criminal cases, lay off large
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numbers of court employees, and eliminate innovative programs that help reduce recidivism and
chemical dependency.
As members of the judiciary you understand perhaps better than anyone else the
importance of an independent judiciary. The judiciary helped to shape the foundation and then
the direction of our country by maintaining an unwavering commitment to the Rule of Law. Yet,
throughout our nation’s history, challenges to the independence of the judiciary have threatened
to weaken the courts’ vital role in our democratic system of government. Those challenges have
never been more serious than they are today.
We learned in our junior high school civics course that each of the three branches has
specific duties and responsibilities, and the ingenious system of checks and balances was
designed to ensure that no one branch would dominate the government. There is no doubt in
my mind that the crucial part of this governmental structure is an independent judiciary.
John Adams, distinguished Boston lawyer, a founder of our democratic form of
government, and second US president, drafted the Massachusetts Constitution, which in turn
served as the basis for the US Constitution. Adams clearly recognized the vital role that an
independent judiciary has in our democracy when he wrote that democracy depends on an
“able and impartial administration of justice,” and on a judiciary that is “subservient to none.”
That notion is embedded in the Massachusetts Constitution in this clause:
It is essential to the preservation of rights of every individual, his life, liberty, property and
character, that there be an impartial interpretation of the laws, and administration of
justice. It is the right of every citizen to be tried by judges as free, impartial and
independent as the lot of humanity will admit.
The judiciary protects the Rule of Law. The Rule of Law allows all citizens to enjoy the
freedoms guaranteed by our state and federal constitutions, and protects the minority from the
tyranny of the majority. The judicial branch checks constitutional overreaching by the legislature
and the excesses of the executive to ensure that all citizens have equal access to all the rights
and liberties guaranteed them by the Constitution. Our laws --- which are meant to protect
everyone --- the rich and the poor, the majority and the minority, the powerful and the powerless
--- can only function if the judiciary is independent, impartial and, equally important, courageous.
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Speaking about the importance of impartiality, Chief Justice Rehnquist said this:
A judge is bound to decide each case fairly, in accord with the relevant
facts and the applicable law, even when the decision is not the one the
home crowd wants.
Worrying about the reaction of the “home crowd” compromises both impartiality and
integrity in a judge.
Supreme Judicial Court Chief Justice Edward F. Hennessey observed that the “home
crowd” can take many forms:
It may be the clamor of the news media, or the noise of pressure groups, or neighbors.
In states that elect their judges, it may be the expectation of [those who have]
contributed to the judge’s election fund.
In states that elect judges, the “home crowd” certainly includes the voters, who can vote
a judge out of office for rendering an unpopular decision. In Massachusetts we have no
shortage of TV and radio talk show hosts, and online bloggers, who incite public anger toward
judges and judicial decisions.
What effect do they have on judges?
Only the judge himself or herself can say, as a matter of conscience and the ethical and
sacred responsibilities of the judicial office that fairness has prevailed over fear about the “home
crowd’s” reaction.
Day in and day out, judges in our country – over 25,000 in the state court system alone –
hear thousands of cases. And each day courageous judges throughout our judicial system
uphold the Rule of Law and administer justice, even when the law itself may be unpopular, the
facts and players shock the public, the case is notorious, or personal harm is a possibility.
It takes a courageous judge to maintain the Rule of Law while also maintaining the
“home crowd’s” respect for the administration of justice. But it is the solemn obligation of each
judge, to the people and to our democracy, to do just that.
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During the Civil Rights era in this country, federal district judges issued school
desegregation orders, ordered police protection for protestors, and worked to curb racial
discrimination in the jury process, to name just a few issues. These judges, named the “58
Lonely Men” in Jack Peltason’s book, enforced civil rights legislation at the risk of great physical
harm to themselves and their families. Their dedication to the Rule of Law, even at personal
risk, is an inspiring example to all of us.
In 1986, while serving as president of the Massachusetts Bar Association, it was my
honor to present the MBA President’s Award to a courageous federal district judge, W. Arthur
Garrity, Jr., who decided and then for many years monitored the Boston schools desegregation
case. The judge and I lived in the same town and rode the same commuter train daily, during
the tumultuous early 1970’s when he presided over that case. At the time I was a young lawyer,
recently admitted to the bar.
I remember seeing Judge Garrity on the commuter train most mornings, knowing that his
home was under 24-hour protection. I remember watching the Judge as he read the Boston
Globe on the train, along with the rest of us, most of us reading on the Globe’s front page lead
stories helpfully informing Judge Garrity as to how he would rule on this or that issue that day (in
case he were in doubt as to what he was to do). But most of all, I recall the calm of Judge
Garrity, his quiet resolve, and the courage that he displayed under immense pressure both
during and after the trial.
Many in the “home crowd” then were decidedly hostile. Judge Garrity never showed
publicly any effects of that hostility towards him. His courage never wavered. His positive
influence on public school education for all children in the city of Boston is his enduring legacy.
It was for those reasons that the Massachusetts Bar Association presented the President’s
Award to Judge Garrity.
In his brief acceptance remarks Judge Garrity, gently and humbly disavowing comments
about courage, said simply that he was only doing what was expected of him -- being faithful to
the oath he took when he became a judge to uphold the Constitution and laws of the United
States.
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The issue of “separate but equal” continues today, including in Boston, where our
Supreme Judicial Court has come under great criticism from segments of the public, our former
governor, and even the President of the United States regarding the Court’s interpretation of the
Massachusetts Constitution with respect to the rights of gay individuals to marry. Opponents of
the Court’s decision – part of today’s “home crowd” -- have decried the Court’s purported
“judicial activism,” and some even demanded the impeachment of the four Justices who ruled in
the 4-3 majority.
Two days ago a panel of three judges on the US Court of Appeals for the 4th Circuit
courageously ruled – 2-1 – that the President of the United States does not have authority to
imprison a terrorist suspect indefinitely without filing charges against him.
You and I can point to many other cases to make the point.
Just what is “judicial activism?”
I’ve come to decide that it’s a label intended as a slur – much like the term “liberal” is
used pejoratively by right wingers -- to attack a judicial decision with which they strongly
disagree. Regrettably, powerful interest groups, politicians and even the President of the
United States use the label “judicial activist” shamefully to try to foment anger and disrespect
toward the judiciary, to intimidate judges from administering justice fairly -- in short, to curb the
courage to do what the Constitution requires of judges. The slur has been used in disgustingly
acrimonious ads in state judicial campaigns throughout the US financed by interest groups that
brazenly boast that their intent is to “buy” judges who will be friendly to their business or political
agenda.
A recent ABA report on public confidence in the judiciary in those states where judges
are elected indicated that such ads – especially on television – are causing great harm to the
public’s trust of judges. For example, the report cited a Texas Supreme Court survey that found
that 83% of Texas adults, and 79% of Texas lawyers, believed that judicial campaign
contributions influenced judicial decisions “very significantly” or “fairly significantly”. Perhaps the
most distressing statistic of all was that 48% of the judges surveyed believed that campaign
contributions influenced judicial decisions.
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Think of the implications of what I just said. When the public loses respect for and trust
in the judiciary, we start to resemble countries where the Rule of Law is meaningless.
Speaking of judicial courage, I note that judges must also have the courage to
acknowledge the part they themselves play in shaping negative perceptions of the judiciary.
Justice Oliver Wendell Holmes spoke in these terms about the importance of courage in a judge
and the judge’s pursuit of truth:
I get letters, not always anonymous, intimating that we are corrupt. Well,
gentlemen, I admit that it makes my heart ache. It is very painful when one
spends all the energies of one’s soul in trying to do good work, with no thought
but that of solving a problem according to the rules by which one is bound, to
know that many see sinister motives and would be glad to find evidence that one
was consciously bad. But we must take such things philosophically and try to
see what we can learn from the hatred and distrust, and whether behind them
there may not be some germ of inarticulate truth.
Such self-evaluation is healthy, and it should be an on-going process for judges as well as for
lawyers.
It does not help the situation that the conduct or practices of some judges contribute to
public frustration and even anger with the judiciary. I am not talking now about anger with a
judge’s decision. I’m talking about something else – the manner in which a judge administers
his or her courtroom. In Massachusetts, as in most states, the district courts – the people’s
courts -- are “the face of the justice system” to the vast majority of citizens, because more
members of the public interact with the justice system at the district court level than at any other
level.
How a district court judge conducts the courtroom – what he or she says and does, and
how, are closely observed by all who sit in the courtroom, and have a direct and enormous
influence on public respect, confidence and trust not only in the judiciary but the entire justice
system. I know that you know it, but it bears repeating – judges must show respect for
everyone in the courtroom at all times.
In my eight years as a member of the Massachusetts JNC and four years on the ABA
Federal Judiciary Committee vetting federal court nominees, I heard numerous complaints –
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some very angry -- from litigants, lawyers and court personnel about the lack of respect
demonstrated by some persons who wear the black robe.
A common complaint: When a matter is scheduled to be heard at a fixed time, and
everyone in the courtroom is made to wait for an hour or two or more before the matter is heard
or is rescheduled to another day, without any explanation, the court’s action is interpreted as
disrespect for all who have been made to wait, and they in turn feel disrespect toward the court
and the justice system. Another example: When a judge delays for a long time in issuing a
decision in a matter without explanation, frustration, anger and disrespect usually follow.
A similar result occurs when a judge shows discourtesy towards anyone in the courtroom.
Most of these problems (apart from discourtesy, which is never excusable) can be
avoided very simply – by the judge being punctual, or explaining what is causing the delay.
Judges have the opportunity and obligation to educate everyone about what is happening -- or
is being delayed from happening -- in the courtroom or in a case. A simple explanation will go
a long way. People pay close attention to what the person in the black robe says, and they
want to respect the judge and the judicial process. Judges have to be aware of the impact that
their conduct and words have on public respect for the judiciary as a whole, just as lawyers
must be mindful of how their actions greatly influence public opinion of and respect for the legal
profession.
Despite criticism, I have no doubt that the US justice system is the best in the world, the
envy of all free nations, and I have the greatest respect for the judiciary and its independence in
our system of government.
Something that Adlai Stevenson said in a different context, but
perhaps applicable here, comes to mind. He said:
The real patriots are those who love America as she is, but who want the
beloved to be more lovable. This is not treachery. This, as every parent, every
teacher, every friend must know, is the truest and noblest affection.
It is in that spirit that I offer my observations.
I believe that most Americans want an independent judiciary, but they may not know it.
My statement reflects the fact that many Americans are of two minds about the judiciary.
Several national public opinion surveys conducted by the ABA the National Center for State
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Courts, and the Justice at Stake campaign, as well as other state specific surveys, show that
Americans want judges who are free from outside influence.1
At the same time, many people favor judicial decisions that reflect personal political
preferences and values, and many express a desire to hold judges more directly accountable to
the public’s will.2 The root cause of these conflicting attitudes towards the judiciary, I believe, is
a basic lack of knowledge. Too many Americans are uninformed about our democratic system
of government, and particularly about the constitutionally prescribed roles and responsibilities of
the judicial branch.
In a Harris Interactive poll commissioned by the ABA in July 2005 as I was about to
become president, 45% of the respondents could not correctly identify our three branches of
government; 48% did not know what “separation of powers” means; and 29% did not know the
definition of “checks and balances.” Perhaps most troubling is that 44% of those surveyed did
not know the core responsibilities of the judicial branch.3 Some think that judges declare war.
Others believe that judges advise the president.
The survey demonstrated that we have quite an educational effort to undertake. That is
why a major initiative as ABA president last year focused on the need to enhance the civic
education of all Americans on the roles and responsibilities of our three branches of
government, with a particular emphasis on the vital role of an independent judiciary. I
appointed the non-partisan ABA Commission on Civic Education and the Separation of Powers,
comprised of elder statesmen and stateswomen and leading national educators, and co-chaired
by Justice Sandra Day O’Connor and former US Senator Bill Bradley. It examined the current
state of civic education concerning our constitutional democracy, to determine what
improvements need to be made in educational policy, teaching techniques and civics curricula
throughout our nation.
1
See AMERICAN BAR ASSOCIATION, PERCEPTIONS OF THE U.S. JUSTICE SYSTEM (1999); Justice at Stake Campaign,
National Survey of American Voters (2002), available at http: faircourts.org/files/JASNationalSurveyResults.pdf;
National Center for State Courts, HOW THE PUBLIC VIEWS THE STATE COURTS: A 1999 NATIONAL SURVEY; North
Carolina Center for Voter Education, Judicial Campaign Reform Poll (May 2002), available at
http://www.ncvotered.com/downloads/poll_052002/toplines.doc.
2
Id.
3
Harris Interactive, Civics Education (Prepared for the American Bar Association, July 2005), at 5, available at
http://www.abanet.org/media/docs/divisionofpowers_705.pdf.
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Last August the ABA House of Delegates unanimously adopted the Commission’s
recommendations, which call on education policy makers in each state to ensure that all
students experience the kind of civic learning vitally necessary to becoming actively engaged
and responsible citizens of our democracy.
Judges and lawyers have an extremely important obligation -- and opportunity -- to
educate the public abut the importance of an independent judiciary. I believe that the greatest
danger to democracy is not an over-reaching executive branch or a legislative branch that
alternately is passive or overly aggressive, but a subservient judicial branch.
We know that each branch was given a vital role, and that each must exercise a
balancing power in our democracy. The balance is broken when judges are intimidated into a
passive or submissive role, or when their powers of analysis, training, and duty to do justice are
usurped by another branch of government that, in its zealousness, may be exceeding
constitutional boundaries.
Examples: the President’s program of spying on Americans, presidential misuse of
presidential signing statements, the denial of habeas corpus rights to those incarcerated at
Guantanamo, the torture of military prisoners, among other recent issues.
I appointed bi-partisan ABA Task Forces that addressed the first two issues, resulting in
unanimous reports and recommendations adopted as policy by the ABA House of Delegates,
and the ABA in recent years has also adopted policies on each of the other issues mentioned,
policies that strongly opposed the Administration’s violation of the separation of powers
doctrine. Sooner or later issues such as these will be decided by the courts.
The critical role of the judiciary is to prevent the overreaching and excesses of power by
the other two branches. The judiciary cannot perform its constitutional function unless it is a
co-equal and independent branch of government.
How can those who advocate for an independent judiciary and separation of powers
make an effective case with the public for supporting and protecting these core principles?
Some observers have suggested abandoning the term “judicial independence,” because that
term has been made a lightning rod by those who want to have a weakened judiciary. “Judicial
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independence,” they say, conjures up images of an unaccountable cadre of elites in black robes
who have too much power to inject personal policies or values into rulings that have
far-reaching implications for everyone in society. Characterizing the judiciary as “fair and
impartial” and “accountable” rather than “independent,” they argue, may be more palatable to
the public.
I reject the notion of ceding the high ground represented by the concept of an
independent judiciary to ideologically-motivated critics on either the right or the left -- to those
who seek to sway the public to buy into their attempts to tear down the judiciary for ideological
or other reasons. We must patiently, firmly, and constantly educate the people that “judicial
independence” is not for the personal or collective benefit of judges, but for the protection of the
people. The principle of judicial independence, recognized by John Adams and his coFounders and enshrined in the Constitution, has allowed our democracy to survive for more
than two centuries. We must oppose all efforts to abandon it as an “inconvenient” or “outdated”
notion that does not “sell” today in the realm of modern public relations.
I am suggesting that we must accurately frame the debate and seize the initiative from
those who are irresponsibly attacking and distorting the judiciary and our legal system. Yes, it
is important that we all support a “fair and impartial” judiciary. However, without a deeper public
understanding of the need for a judiciary that is also “independent,” un-informed people will be
easy prey to politically or financially driven suggestions that judges must be “reined in” or
punished in some way for issuing fair and impartial decisions.
What, then, is “judicial independence?”
Judicial independence simply means protecting judges from intimidation, from influence,
from reprisals by legislators or executives, and from control by any interest group or other
governmental branch, so that judges can administer justice without fear or favor. If we educate
Americans as to what “judicial independence” really means, we will be able to counter the
attacks on the branch of government that Chief Justice Rehnquist rightly called the “crown jewel
of our democracy.” Only an educated public ultimately can protect democracy. We must
continually educate the people about the precious gift they have.
I conclude with this.
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Lawyers, and particularly the organized bar, know what’s at stake and therefore must
zealously protect judicial independence. The organized bar must ensure that judges have
adequate compensation and the resources to do their work. This responsibility of lawyers and
the bar has never been as pressing as it is now. Because judges cannot defend themselves in
the court of public opinion, the organized bar must speak out when the judiciary is attacked. As
I have said to numerous audiences throughout the United States – if we do not protect our
courts, they cannot protect us.
Finally, I say that we must publicly acknowledge and celebrate judges who protect the
Rule of Law, judges such as Massachusetts federal judge W. Arthur Garrity, Jr. and others who
preceded and have followed him, judges who demonstrate the courage to uphold the
Constitution and laws of the United States without regard to personal consequences.
Judicial independence and judicial courage -- never have they been more important than
at this dangerous moment in our nation’s history.
Thank you for your kind attention.
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