Cases and Controversies: Reflections of a Judge on the Judiciary
Justice Bobbe J. Bridge (ret.)
Puget Sound Association of Phi Beta Kappa Spring Luncheon, May 1, 2008
Billed as reflections on my eight years at the Washington State Supreme Court – though what I have to say today began developing while spending ten years as a trial judge (Superior Court in King County) and maybe even harkens back to my days as a Political Science graduate student focusing on “judicial politics.” Altogether fitting and proper (to coin a phrase) because I appeared at this very luncheon just a few months after I joined the Supreme Court (April 28, 2000) opining then on “The Supreme Court: Life at the Temple of Justice.” I focused then on current cases before the Court, and the way in which my work at the appellate level is different, and even less understood (though more visible) than the work I’d left at the trial court. Eighteen years as a judge. Four months as a “civilian.” Not a lot of separation, but enough time for some preliminary reflections to share.
Article IV of the Washington State Constitution defines the power of the judiciary – Section 1 provides that the “judicial power of the state shall be vested in a supreme court, superior courts, justices of the peace, and such inferior courts as the legislature may provide.” As is true of Art III of the US Constitution, after which this provision is modeled, the language is elegant in its simplicity, rough in its complexity. Just how that power is asserted – in relation to precedent (rule of law), in relation to the other branches of government, in relation to public expectation, is what these reflections are about – having now the benefit of being outside the fray for some months and inside for 18 years.
I observe some troubling trends (particularly in the selection process) but also some much needed positive changes in the way courts, including the Supreme Court, does its business – courts being more responsive to real needs of litigants in the 21st century in terms of process and procedure, e.g., the development of problem solving courts; courthouse facilitators to help the ever-increasing numbers of litigants without lawyers (pro ses); e-filing. The proceedings of the Supreme Court can be watched most nights on TVW. The Supreme Court Chief Justice leads a mostly united judiciary in advancing justice: urging the legislature to increase juror fees (so panels are more inclusive), collaborating between court levels and the communities they serve for greater efficiency, expanding the use of interpreters. Washington’s courts are among the most open and visible in the nation.
But my focus here is on the Supreme Court – and for the most part, the trends I reflect on are of the troubling variety.
First, lest it get lost in my remarks, let me say:
My colleagues (past and present) are dedicated, intelligent and diligent public servants. They are collegial and embrace the notice of collaborative decision-making. We advocate and debate (sometimes fiercely) but always with respect for ourselves, for the litigants and lawyers who appear before us. We are cognizant of the power and responsibility of our office and endeavor to be good stewards of our authority under the Constitutions of the US and the State of Washington.
And, a brief commercial: a recent article in the NYT reported on a study, published in December of 2007 in the University of California Davis Law Review, counting the number of times the decisions of states’ high courts were followed in other states, i.e., how often one state’s decision played a direct role in shaping a decision elsewhere. In the 65 years ending in 2005, more than 24,000 state high court cases have been followed at least once, California leads with 1260. Washington is next with 942. Since the study counted only those citations designated “followed” in our Shepards citation index, that means only those instances where our case was cited as “controlling or persuasive authority”, and thus had a substantial role in shaping the later decision, are included. Bravo!
So on with the reflections:
The role of the judiciary in our democracy is circumscribed by the constitution(s) and by our own precedent. I mentioned Art. III of the US Constitution – it not only repeats virtually the same language vesting the authority of the judiciary in courts but also specifies that courts are to hear “cases” and “controversies”. That’s been interpreted to mean that the court does not reach out to solve a problem or reach an issue – litigants must come to us (we don’t seek issues out) and they must come to court only with real disputes. We cannot offer advisory opinions on what may happen – nor offer an opinion on the constitutionality of a ballot measure, for instance, prior to its passage and someone actually being aggrieved by its implementation.
With respect to other branches of government, we are charged with interpreting laws, not making them, to try to divine what the legislature’s meaning of a particular statutory phrase might be, to protect individual rights against the government, even against the majority of the people. Majorities (except for 5 justices) do not rule in a legal matter. That’s what the rule of law is all about.
Finally, we are not to make “political decisions” and are thereby bound to refrain from addressing “political questions.” Sound familiar for those of you fortunate enough to be old enough to have had a civics class? Of course, that’s the ideal. In fact, we have pressures both inside and outside government to stretch that jurisprudence and to become mired in the dreaded “political thicket.” “Political” broadly defined. “Political thicket” refers to a phrase used by Justice Felix Frankfurter used as a warning against judicial review of questions relating to the nature of representation in legislative bodies. That warning has largely been ignored many times in order to advance the voting rights of disenfranchised minorities. But the thicket has expanded:
E.g. recalls (including the Mayor of Spokane)
- election challenges (Corday)
- Regional Transit Authority
- PDC v. WEA (invalidated initiative 134)
- Monorail taxing authority
- Cross (efficacy of death penalty statute after plea agreement in Green River killer case)
- Petition for writ of mandamus against Gov. Locke’s veto of certain parts of the statute enacting a new primary system in response to the United States Supreme Court’s invalidation of the open primary
And that’s just a few!
What is the trend? The circumscribed role of the judiciary in deciding “cases and controversies” is being challenged. More and more, courts are places where key social/political issues end up – but that trend started long before I joined the Washington State Supreme Court. How that trend plays out is or a newer, darker vintage.
First and foremost is pressure – pressure outside the legal process – social and political pressure. So what are those pressures – aside from the bringing of the cases?
(1) From other branches: in the form of “dumping” (sometimes in a very overt way), e.g., initiatives (the 60l cases); letting the Court “sort out” conflicts in legislation that may be particularly politically sensitive. Perhaps Andersen will serve as an example.
“Legislative spanking” is the practice of taking out after specific cases in the preamble to legislation – perfectly within the framework of separation of powers, I suppose, but of dubious value to respect for a co-equal branch. An example: The juvenile wash out cases – Andress.
NB our rules of interpretation provide that the legislature’s “clarification” of its intent in a statute we have “gotten wrong” can be retroactive, but only so long as it is specific; retroactivity is expressly disfavored. This is good rule; there is a need for certainty and stability in law until it is changed. It is best done prospectively so people can order their affairs (or refrain from activity criminalized) in conformance with the law.
Another spanking: Housing case (before my time but trickled down into relations between branches at budget time) where we held that if homelessness was the sole reason to place a child in foster care, then the State was under an obligation to find housing rather than keep the child in foster care and away from his/her family.
The Legislature always sensitive to court determinations that cost them money! The School funding case (basic education) of some years ago is another example of this battle. While I was on the court we encountered a similar issue, though one in which the legislature was hoping for our assistance in interpreting its power of the purse, specifically in light of the spending limitations in I601. We had to decide whether the legislature had abused their power to declare an emergency (avoiding 601) and as well whether they had properly calculated their spending limit so as to be in compliance with 601. We said “no” as to the abuse; “yes” as to the calculation.
(2) But more and more we are being pressured by outside interest groups – chiefly through the press and in our campaigns (more about the latter in a minute). Pressure is exerted through editorials while a case is pending; there are spins on the text of an opinion (from associations of property owners, builders, environmentalists, feminists, victim rights groups, etc.); headline grabbing mischaracterizations of the impact of a particular case.
- Prosecutor and victim’s groups (Andress: Assault as basis of felony murder)
- Media plaintiff in name of “public” ( Hangartner: Open government case)
- School records cases (Privacy)
- Land use/environment (Monorail project, GMA cases, Third Runway at SeaTac)
- And of course, the initiatives!
And what has this pressure done to public perception and expectation? Well, in terms of public trust and confidence, while the judiciary polls are higher than most of the rest of government, public perceptions of fairness and objectivity are pretty low. In part molded by the media, there is a perception of interbranch warfare. Special interest “spin” often is reported as fact in articles (or now blogs) where it is all too obvious that the reporter has not bothered to read an entire opinion. Some of the “blame” is ours – judges need to be more cognizant of the various “publics” (audience) for their decisions. It is no longer sufficient that we provide our reasoning and result to the litigants, we must do so with the press and the public at large in mind. This requires us to contextualize our writing, make sure that precedent or the wording of a statute being interpreted is clearly set forth.
But we live in a sound-bite environment – legal issues are rarely subject to sound-bite ripe explanations.
Yet another issue is the selection/election process. Campaigns exacerbate the notion that judges “represent” a particular constituency (geographic, ethnic/racial/, gender-based, political party). When in fact we do not and must not. To do so would upset the fine balance established by separation of powers (and those checks and balances) as Alexander Hamilton opined in the The Federalist (No. 78):
“Whoever attentively considers the different departments of power must perceive that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution. . . . The judiciary . . . has no influence over either the sword or purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.”
No army; no power of the purse. Thus our only legitimacy is the trust and confidence of the public. As that wanes, so does the rule of law.
Money has been inserted. Its meaning? “With liberty and justice for all” should not mean for those who pay. Justice should not be bought nor perceived to be bought.
Look at our recent judicial elections – especially at the Supreme Court level. Washington is a late arrival to the hotly contested, money saturated campaigns of other jurisdictions, but we have arrived. Obscene amounts of money are being spent by interest groups bound to elect judges that they believe will “vote” their way. . . and in the process they’re using vicious attacks of the kind all too commonplace in other elective offices. Ad hominem arguments – disrespect which tarnishes the institution and blurs the differences with other branches of government in the mind of the electorate. And it will become more pronounced (that’s a diplomatic word for worse): US Supreme Court cases define money as “speech” and so limitations on its use are few. And, more and more the justices are making it clear that efforts by the states to restrict the speech of judicial candidates (to advance objectivity and accurately defining our role) through Codes of Judicial Conduct are doomed to challenge as forbidden by the 1st Amendment. Blurring again our traditional constitutional role in our democracy.
And then, there’s the reality of public education today – civics lessons are few and far between. Odd that in a democracy that’s the only thing we really share – our right to vote and our duties as citizens – odd that such education is not a fundamental part of most curricula. And so, no surprise that, together with media sensationalizing and special interest spin, this cocktail results in negative views of the courts.
Exhibit A again is any initiative case – the public either doesn’t understand or doesn’t accept the tenet that the majority doesn’t always “win” in our republican form of democracy. The former (lack of understanding) can be solved; the latter (lack of acceptance) is frightening. Think of history. . . the excesses of majority rule unfettered by the rule of law respecting individual rights.
To summarize again from The Federalist, this time Madison, in No 10:
“Through the persistent struggles of short-lived factions, the liberties of both majorities and minorities would be preserved. The three branches of government are separate; the viability of each branch guaranteed by giving it sufficient power to defend itself against the actions of other branches. When any branch overstepped its constitutionally defined role, the other branches can act to check the abuse.”
And, as we’ve seen, that happens repeatedly in the response to cases where the Supreme Court has “gotten it wrong” in interpreting legislative intent or where a pronouncement of ours made in the absence of legislative action is quickly followed by legislative action, to “straighten us out.” Even if we decide that a piece of legislation is unconstitutional there is recourse to the people – amend the constitution. It’s hard, you say, but it’s meant to be. Again, our system values stability and consistency over rebellion and rush to judgment in the heat of the topic du jour and it (mostly) works.
And so, lest this become a rant, let me bring this to a close and summarize these reflections.
I have been honored and privileged to serve as a judge – and especially as a justice of the Washington State Supreme Court. It has been intellectually challenging and an enormous responsibility – we quite literally hold lives in our hands. I am concerned about trends suggesting that our judicial system, and particularly the talented and committed people who wear the robes, are to be subjected to the same “lobbying” and “ballot box” pressures that is to be expected in the executive and legislative branches. Our system is a solid one – protective of the individual and respectful of the will of the majority. It’s not, however, in our DNA – it must be taught to each generation. That’s our job. Your interest in today’s topic speaks to your willingness to take on this education – this duty to ensure that the next generation understands the importance of, and differences between the duties and powers of each branch of our government, the importance of the Bill of Rights as well as the other provisions of the Constitution (state and federal), the desirability of checks and balances.
We ask ourselves the same question raised at the launching of our country: we have a republic; can we keep it?