Judges are under siege. Federal judges are bearing the brunt of the attack, but state judges are
suffering harmful collateral damage.
Debates about federal judges are currently raging in Congress—debates inflamed by members
who claim to serve the Constitution but dishonor it when they threaten judges for acting with the
independence that judging requires. Last spring, House Majority leader Tom DeLay (R-Tex.), commenting
on the outcome of the Terri Schiavo case, ominously—and now famously—warned, “The
time will come for the men responsible for this to answer for their behavior.”
Federal judges have lifetime appointments precisely so that they can be free from the influence
of elected officials and the whims of a temporary majority. Judges must be tough: They have to be
able to take criticism, but they should never have to deal with threats to their independence or
their safety. They deserve praise, not blame, for protecting our freedoms to think, act, and worship
in ways that may not be popular.
Although the attack on judicial independence has primarily targeted federal judges, its effects
reach far beyond the federal courts, which decide only 3 percent of all cases. For the vast majority
of Americans, justice is found in their state courthouses, dispensed by local juries. State court
judges and their independence are increasingly challenged because state judges’ unique role
is mistakenly equated with that of the federal judiciary.
It has now been said so often that judges must not make law that people unquestioningly believe it.
Whether the assertion is true of federal judges is a debate that can keep law professors paid and
published from now until the end of the republic. But the statement is flat wrong about state judges.
Their job has always been to make law.
State courts were designed to discharge what Justice John Marshall described, in Marbury v. Madison,
as one of the first duties of government: providing remedies for those injured by others. Tort law
is not mentioned in the Constitution because people didn’t want the federal government to have
any sway over it.
The common law was meant to be the province of state courts. It was to be made slowly, its evolution
reflecting the collective experience and wisdom of the people. The people and our nation’s
founders did not want it made by legislators, state or federal—who might be influenced by special
interests—and not even by federal judges. They wanted it made in their local courts by local
judges and juries. They wanted to ensure that the development of the common law was not buffeted
and burdened, as legislation almost always is, by the latest intellectual fads, the interests of
the corporate elite, or the dictates of a transient political majority.
Quest for control
Many in the current congressional majority are frustrated that they don’t control law made
by state courts. Their discontent with federal judges is actually discontent with the idea that government
that is closest to the people is best for the people.
Interestingly, these same lawmakers often posture as advocates of state power against the federal
government. Although they say they want to devolve power from the federal government to the states,
many want Congress to dictate the outcome of litigation in every court in America.
When members of a political majority say that state judges are not supposed to make law, they’re
really saying, “We can’t guarantee that we’ll get what we want by letting judges
and juries decide cases, but we can get what we want in the legislature, so let’s let legislators
make tort law.” Such a statement denigrates the collective wisdom of the people embodied in
the common law, which has carried England and America through the last thousand years very well.
Many state constitutions tell you, often in very direct and powerful language, that there is little
that the drafters trusted less than legislators. As the states came together to form our republic,
the people wanted the common law made by the least corruptible public actors they knew—judges.
And to ensure that the judges stayed uncorrupted, they put 12 ordinary citizens into each courtroom
State judges need our help. When unwarranted criticism and misunderstanding about their role skew
our public debate, lawyers should rise to their defense. The next time you hear people say that judges
should not make law, educate them.