T he following are excerpts from remarks given by Jonathan Lippman, presiding justice of the Appellate Division, First Department, on receipt of the William H. Rehnquist Award for Judicial Excellence at the U.S. Supreme Court on Nov. 20 in Washington, D.C.
Chief Justice William Rehnquist spoke out forcefully in defense of fair and impartial courts and the proper role of the judiciary as a co-equal and independent branch of government.
And it is that theme, judicial independence – and its flip side, judicial accountability – that I want to explore. Anyone whose life or work involves the judiciary knows that every judge, state or federal, will be criticized from time to time for unpopular decisions, often harshly and unfairly. It’s part of the job description. As Oliver Wendell Holmes Jr. observed soon after arriving at the U.S. Supreme Court: “we are quiet here, but it is the quiet of a storm center.” 1
The courts are, in so many ways, at the eye of the storm, a storm that surrounds the adjudicative role that is at the very core of what we do and who we are.
My own perspective on judicial independence and accountability comes from more than three decades of experience in the New York State courts. It is a perspective that is focused on a dimension of judicial independence that does not always receive the same level of attention devoted to the decisional independence of judges. I am referring to the institutional independence of the judiciary, the right of the courts as a co-equal branch of government to govern ourselves; the freedom to decide how we will conduct our affairs and manage our daily business; and the space and latitude to think outside the box and find new and better ways to serve the public.
Decisional and institutional independence are so very closely intertwined and cannot be considered apart from each other. Many of us in this room know only too well how popular dissatisfaction with court decisions can foster an environment that threatens our ability to self-govern and contributes to callousness about critical issues like adequate and fair judicial pay.
So much of the criticism directed at judges and courts these days is predicated on a distorted concept of accountability. Well-funded and organized interest groups are campaigning to convince Americans that the judiciary is no different from the political branches of government. With the judiciary no longer sitting on a public pedestal or enjoying the kind of societal esteem that sustained us in the past, there is no greater challenge for court systems today than to prevent these efforts from metastasizing into broader attacks on the judiciary’s capacity to govern itself as a co-equal branch of government.
In the face of this daunting challenge, we cannot stand by passively while others co-opt the concept of judicial accountability and define it for their own narrow purposes. We have to be more proactive in creating a positive prism through which the public and the other branches of government perceive the mission and work of the courts, and in finding appropriate ways to legitimize the work of the judiciary in the public mind. This means that we have to stop thinking and talking about judicial accountability in the abstract and start focusing on how we can put it into tangible forms that the publcan see and feel when they come into our courthouses and interact with judges and court staff.
In our decisions, we know without any equivocation that we must follow the Constitution and the law and put the latest political winds to the side, but when it comes to operating and administering our court systems, the public’s needs and expectations should in fact guide us. We should be aware of how the world is evolving around us; of how and why people’s legal problems are changing and becoming more complex and challenging. When it comes to the delivery of justice, the courts do not function in a vacuum separate and apart from the communities and the public we serve.
And this is why in New York, and all over the country, state court leaders have committed themselves, like never before, to the pursuit of court reform as a way of life, whether it be modernizing the jury system, introducing specialized drug courts and domestic violence courts, promoting more coordinated, comprehensive justice for families and children, ensuring meaningful access to the courts, or using the latest technology to promote efficiency, convenience, and cost savings, among countless other reforms.
Whether we like it or not, the state courts are in the eye of the storm; we have become the emergency room for society’s worst ailments – substance abuse, family violence, mental illness, mortgage foreclosures, and so many more. And so the real questions are: how can we appropriately fulfill our constitutional mission in the face of these plagues of modern-day life and remain relevant and responsive to the evolving needs and expectations of our citizenry? And in a time of unprecedented fiscal crisis, how do we embrace innovation and re-engineer the way courts do our business in a cost effective, accessible and efficient manner that promotes institutional accountability and respect for the rule of law?
In New York, to take one example, drug courts represent just that kind of re-engineering. In 200 locations around the state, drug courts go to the very heart of the judicial process, with judges, prosecutors, defense attorneys, treatment providers and court staff working collaboratively to help non-violent offenders overcome their addictions. The coercive power of the court is brought to bear, with intensive monitoring of mandated, tough-love treatment programs for drug and alcohol abuse, balanced with housing, education and job assistance services designed to salvage lives.
In our state, governors and mayors of both political parties, as well as legislators across the political spectrum, from the most liberal to the most conservative, embrace these non-traditional courts. Why? Because they make government work better. Research shows that non-violent offenders who undergo court-ordered drug treatment succeed at better than twice the rate of those who enter treatment voluntarily. This means that we don’t have to spend millions and millions of taxpayer dollars prosecuting, defending and incarcerating the same people over and over again. It means that many low-level, non-violent offenders can become productive jobholders and taxpayers, rather than straining our social service systems.
And then there are New York’s Integrated Domestic Violence (IDV) courts, which emphasize victim safety, victim services, and intensive judicial monitoring of offenders, with criminal, family and matrimonial justice being meted out in a coordinated manner by a single specially trained judge. Today, our IDV courts serve 90 percent of New York’s population and have adjudicated more than 200,000 cases.
The lessons of the problem solving court revolution could not be more relevant to judicial independence and accountability. These courts have enabled us to better understand what it means to be an accountable court system in the 21st century – how we have an obligation to treat each court case in a meaningful fashion; how our citizens and communities look to us for much more than impressive sounding case processing statistics; and how they look to us to forge better outcomes in individual cases, because they know that what happens in our courts really and truly matters to them, to the quality of their lives, the quality of their children’s lives, and the very essence of life in their communities.
And the kind of innovation and creativity we are seeing in New York and around the country comes in so many different forms.
The jury system represents our best and most direct link to the general public. In New York, 650,000 people are called for jury service each year, that’s 650,000 priceless opportunities every single year to show off a court system that operates effectively, that respects people’s time and service, and that matches their lofty expectations about the important work being done by judges and court staff on a daily basis; that’s 650,000 opportunities to exercise accountability in ways that the public can see and feel for themselves.
Until the mid 1990s, jury service in New York was regarded as a negative experience. Overhauling our antiquated, inefficient system took the better part of a decade. But through judicial leadership and a combination of public support, legislation, rule making and administrative action, we eliminated all automatic exemptions, cut the average term of service in half, instituted a one day/one trial system across the state, increased call-back intervals to a minimum of six years, increased juror compensation, ended mandatory jury sequestration, implemented automated call-in systems, and upgraded juror facilities. And these are just a few of the changes that have dramatically increased citizen participation and satisfaction with the jury system and improved overall public attitudes towards the courts.
Specialized business courts in New York and many other jurisdictions promote a positive climate for economic growth by fostering commercial law expertise among state judges. Court leaders can and should find ways to promote the creation and growth of business courts. It is important to the state’s economic health for the business sector to have confidence in the quality of the state court system and its ability to handle complex commercial disputes with expertise and efficiency. It is not in the court system’s or the public’s interest to have businesses fleeing the state courts and taking their disputes elsewhere. That does nothing to enhance our status in the public eye or to attract and keep businesses and their valuable tax dollars in our respective states.
Access to justice is still another area that has benefitted greatly from judicial leadership in New York and elsewhere, including offices for the self-represented, increased pro bono representation for the poor, increased rates of pay for assigned counsel in criminal cases, and increased funding for civil legal services. Many of these advances would not have been possible based solely on the ad-hoc efforts of individual providers and advocates, no matter how well-intentioned. Rather, court system leadership in this critical area has had a galvanizing effect, resulting in more cohesive efforts and a greater awareness and commitment of resources to meet the needs of the poor and disadvantaged in accessing the justice system.
Courts cannot perform their constitutional obligations divorced from the modern realities facing the citizens and communities we serve. The ongoing mortgage foreclosure crisis is a perfect example of how the courts must often respond to societal problems, like unwise lending practices, that begin outside the courts but wind up inside our courtrooms. As foreclosure filings started to double or even triple in some of our counties, we decided in New York to take affirmative steps to streamline the lengthy foreclosure process and promote early court intervention. In consultation with the state’s banking community and homeowner advocacy groups, we set up special conference parts to engage lenders and borrowers in expedited settlement discussions to explore the possibility of loan workouts, or failing that, to set up case management plans that avoid unnecessary delay and expense.
And there is one other critical area that is so relevant today – court funding and spending. The other branches of government and taxpayers have an absolute right to demand that we make efficient use of the resources entrusted to us, particularly now, because the present state court funding crisis promises to eclipse even the very difficult one we faced after the horrific events of 9/11. But a track record of using public dollars wisely cannot be acquired overnight or in the middle of a national or state fiscal crisis. It takes an ongoing commitment, during good and bad economic times, to account for every dollar spent by submitting prudent, transparent budgets that embody rational, common sense priorities that are in turn based on objective, systemic needs rather than parochial perspectives.
These are but a few examples of how state court systems, in New York and elsewhere, are working to promote judicial accountability by serving the public interest. The courts have, by necessity, become change merchants for the justice system and the public, introducing and shaping new programs that both contribute to the public good and enable us to improve our efficiency and job performance.
This is precisely what we need to be doing, day in and day out, in state court systems all around the country – developing and implementing an agenda for the future of the judiciary that is relevant to our citizenry.
But we can’t get to that point without strong, visionary court leaders who are committed to thinking creatively about, and when necessary, redefining the judiciary to meet the demands of life in the 21st century.
We need court leaders who understand the importance of anticipating and managing change, so that the courts are prepared to confront the challenges that millions of ordinary people bring into our courthouses every single day: evictions, divorces, monetary disputes, debilitating injuries, criminal charges. These are people who are dealing with personal crises and placing their hopes in the fairness and wisdom of judges and the legal system.
And when we succeed in meeting these challenges, we send the message that our commitment as an institution is to serve the public in the best way possible and that our only agenda is to administer justice efficiently and effectively for the well-being of our citizens. And that agenda, which is being advanced every day by the innovative court reform efforts of state judiciaries, enables us to create the context and the prism through which individual adjudicative decisions, controversial or not, will be viewed. Court reform gives us credibility and strengthens our independence as a branch of government.
By being truly accountable, by creating modern, fair and efficient state court systems that are open and transparent, we will provide the framework for the public to judge us. And in the end, it is that kind of public credibility, that store of reputational capital, which is our very best guarantee of a strong, independent and vibrant judiciary that can thrive, even in the eye of the storm – a judiciary that is capable of withstanding the inevitable tempests that all court systems must endure given their crucial role in our tripartite system of government and in our free and open society. It is a role that we in the state judiciary are so privileged to have.
Jonathan Lippman, presiding justice of the Appellate Division, First Department, was the chief administrative judge of New York from 1996 until 2007.
1. Quoted in William H. Rehnquist, The Supreme Court, 305 (1987)