On Sunday, Oct. 1, the John Carroll Society sponsored its 65th Red Mass at the Cathedral of Saint Matthew the Apostle in Washington, D.C. The Red Mass attendees for this solemn celebration included U.S. Supreme Court Chief Justice John Roberts, and Associate Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito. According to the printed program for the occasion:
“The Red Mass is celebrated annually at the cathedral, traditionally on the Sunday before the first Monday in October, which marks the opening of the Supreme Court’s annual term. Its purpose is to invoke God’s blessing on those responsible for the administration of justice as well as on all public officials.” I note this annual event to remind all lawyers of our obligation to foster the rule of law and uphold the dignity of our judicial institutions.
Upholding the dignity of our judicial institutions is difficult when we engage in hyperbolic discussions about high-profile issues before our courts. The new U.S. Supreme Court term presents several high-profile cases that have already stimulated emotional debate. Among the hot-button issues coming before the court are:
1) Whether President Donald Trump’s travel ban violates the Constitution or federal law. 2) Whether a state’s public accommodations law that compels a bakery to design a wedding cake for a same-sex couple, in violation of the bakery owners’ sincerely held religious beliefs about marriage, violates the free speech or free exercise clauses of the First Amendment. 3) Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user is permitted by the Fourth Amendment. 4) Whether aliens subject to mandatory detention under federal law must be afforded bond hearings, with the possibility of release, if detention lasts six months. 5) Whether a lower court violated Supreme Court precedent when it held that a state’s redistricting plan was an impermissible partisan gerrymander; and 6) Whether an employment agreement violates federal law if it requires an employer and employee to resolve employment-related disputes through individual arbitration and waive class and collective proceedings or if the agreement bars employees from pursuing work-related claims on a collective or class basis. Whatever your opinion about these issues, lawyers should not join in the attacks on our judiciary to dismiss the validity of a decision with which we disagree as based on politics or evil ideological pursuit.
Although attacking judges and the judicial system may be “just politics” for those opposing a decision, such vitriol undermines the essence of our democracy and causes damage to the courts—one of our country’s most venerable institutions. Our justice system is a model for the world. Fair, impartial and independent courts are necessary to maintain the American way of life. They are essential to preserve the individual rights and liberties of all citizens, including the most vulnerable in our society, and uphold the rightful authority of elected and appointed leaders. We must avoid the temptation of “scapejudging”—holding judges with whom we disagree responsible for society’s problems that have defied easy solutions. We must not resort to catchphrases such as “legislating from the bench,” “soft on crime,” and “activist judge” to question the validity of an unfavorable decision.
While we cherish the right of all Americans—including lawyers and judges such as me—to criticize the reasoning of a judicial opinion or disagree with the outcome of a case, we must not join in or countenance ad hominem attacks on the integrity and impartiality of judges because we disagree with their decision. These types of attacks undermine public confidence in the American judicial system, subvert the system of checks and balances established by our Constitution and legitimize a thought process that anyone who disagrees with me must have an evil purpose.
Celebrating the fairness, impartiality and independence of our judicial system demonstrates to the world our enlightened forum for resolving disputes between individuals and all levels of the legislative and executive branches of government. In addition, we have exemplary systems of checks and balances. If a judge makes a “bad” decision, we have an appellate process to correct the result, and people, through their legislative representatives or by constitutional amendment, have the ultimate power to change the result. In the case of illegal or corrupt behavior by a judicial officer, a disciplinary process exists to sanction or remove a judge from the bench, but not because of disagreement with a particular decision.
Whatever your opinions about these issues, I challenge all members of the legal community to speak thoughtfully in your response to a judicial decision with which you agree or disagree. Demonstrate to the world that our belief in a fair, impartial, and independent judiciary is not just words, but a core tenet of the American way of life.
Judge Herbert B. Dixon Jr. is chair of the American Bar Association’s Standing Committee on the American Judicial System. He retired from the Superior Court of D.C. after 30 years of service. This column was originally published on the ABA’s Standing Committee on Judicial System’s website and is published here with the permission of the author.