Handbook for Judicial Officers — Publicity and social criticism

With the 800th anniversary of the signing of Magna Carta being celebrated in 2015, I thought that it might be appropriate to reflect upon cl 45 of the Great Charter in which King John promised that: “We will appoint as justices, constables, sheriffs or other officials, only men that know the law of the realm and are minded to keep it well.” In the historical record, this section of Magna Carta was the birth notice of the judiciary as an arm of government.

The idea that what our judges do in exercising the judicial power of the State is, and should always be, informed by an expert understanding of the law through long training and experience and a professional ethos of disinterested personal restraint. This has been a central theme of the common law since its first moments of self-consciousness.

At the time John signed Magna Carta, the judges had considerable personal contact with the King himself. We know this because they “often marked their cases ‘loquendum cum rege’”,^[3] that is, “to be discussed with the King”. The practice reflected the political reality that the judges were not then independent of the Executive government of the day; they were institutionally connected to, and directly dependent for their authority upon, the King. It may even be that this practice gave rise, to some extent, to the grievance addressed by cl 45 of Magna Carta.

The direct connection between the judges and sovereign power proved to be a source of self-confidence in the English judiciary. This confidence showed itself to be increasingly resistant to the other great institution with a claim upon their allegiance and influence upon their professional ethos — the Catholic Church. That self-confidence proved to be a potent dynamic in the development of the common law as supplanting canon law and civil law ideas derived from continental jurisprudence.

But the very fact that the great promise in cl 45 of Magna Carta was made at all, even though all the powers of government were still concentrated in the hands of the monarch as sovereign, suggests that Ralph Turner was right in his suggestion that the judges and lawyers were, and were seen to be, beginning to develop a view of themselves as members of a profession dedicated to the administration of justice.^[4]

Thereafter, the idea that there was something independent about the legal profession and the judiciary developed apace. That development was sufficiently assured by the end of the 14th century that the rights of subjects were being vigorously enforced, even against the King himself in his own courts.

There was, for example, the celebrated litigation in the 15th century between the Abbess of Syon, the head of a cloistered order of nuns, and Henry VI, which arose when the King dispossessed the abbey of an endowment given to it by his father, Henry V. The rights of the nuns were vindicated by the independent judiciary assisted by equally independent counsel. Incidentally, the nuns did not forget. The King’s name was not mentioned again in the names of the eminent persons for whom the nuns prayed until 1937.^[5]

In the legal tradition that developed over the 800 years after Magna Carta, and as the activities of government came to be the responsibility of separate organs of sovereign power, it became the function of the legal profession and the judges produced from it to ensure that the law is enforced by those who “know the law of the realm” and whose professional ethos ensures that they are “minded to keep it well”.

The common law which developed over that time was distinguished by its incremental development by judges (and juries) in contrast to the theory-driven work of continental scholars whose first allegiance was to the academy and the Church.

In the tradition of the common law, the names of most of the participants in the most important episodes along the way of the stuttering iterative process, whereby an independent legal profession and judiciary emerged over the centuries, are today virtually unknown.

To be sure, there were some great judges whose names we all know, but, in truth, the common law developed as described by J W Burrow:^[6]

In the US, the claims of democracy, asserted most vigorously during the presidency of Andrew Jackson, trumped the claims of professionalism and led to the adoption of an elected judiciary in many of the States. There is some irony in the circumstance that the argument for tenured judges, appointed from the ranks of the legal profession, was made most eloquently by an American. Writing in “The Federalist No 78”,^[7] Alexander Hamilton said:^[8]

The defining characteristic of our modern judiciary is politically neutral professionalism.

Edmund Burke, like Alexander Hamilton, favoured the “cold neutrality of an impartial judge”^[9] over the idea of the exercise by judicial proxy of the popular will. Burke’s idea of cold neutrality has modern echoes in Sir Owen Dixon’s idea of legalism, and in the observation of Laurence Tribe, the distinguished American scholar of constitutional law, that “the whole point of an independent judiciary is to be ‘antidemocratic’” [emphasis in original].^[10]

In the long run, the judiciary, as the unelected third branch of government, is tolerable in a democracy only because of our professional competence and because of a professional background apt to inculcate political neutrality in the exercise of our functions.

A pressing challenge for the Australian judiciary, and for the Judicial Conference of Australia (JCA) as our representative body, is in communicating the value of this idea of politically neutral professionalism to ensure that it continues to be recognised by the broader community.

Some members of the public and some in the media have a view that the judges see themselves as a self-important, if not self-interested, elite who are far too smart for their own or anyone else’s good. One might expect that some of these commentators would know better.

Professor James Allan of the University of Queensland, and a regular commentator on legal matters in The Australian, in a recent opinion piece concerning the controversy surrounding the appointment of Carmody CJ, wrote:^[11]

Just think about that: a really smart person is more likely to make an awful judge.

Perhaps Professor Allan should try to get out and meet more judges.

Even within the Executive governments of the Commonwealth and States, there is a profound lack of understanding of the function of the judiciary. Getting the message across to those of the managerialist mindset in government is a challenge which needs continually to be addressed.

Judges in Australia write our judgments. Not everyone understands that. I say that, not only in respect of the angry unreflective people who are ignorant about what we do.

The most worrying misconception I have encountered is the belief among officers of the Executive government that judges do not actually write their own judgments.

When I was Chief Justice of the Federal Court, I was told by one of my colleagues who was responsible for negotiations concerning judicial salaries, that in the course of discussions with officers of the Executive government, those officers had expressed disbelief when told that our judges spend more time writing judgments than sitting in court. The bureaucrats assumed that we delegate the writing of judgments to our associates.

It may be that this misunderstanding is a consequence of the high profile of the US Supreme Court and the fact that justices of that court have four clerks each of whose task it is to prepare opinions for the consideration of the justices. Anecdotal evidence suggests some of the justices do little actual writing. It is said that one former justice did not even make that level of contribution to the opinions that appeared under his name. The suggestion was that the justice’s contribution was limited to an instruction as to the desired outcome and then checking the citations made by his clerk. It was said that his Honour was “one hell of a citechecker”.

This practice does not seem to be confined to the US Supreme Court. Some thoughtful Americans deprecate it. Judge Richard Posner, of the seventh Circuit Court of Appeals, writing extra-judicially, has said that judges cannot hope that “by careful editing they can make a judicial opinion [written by a clerk] their own”.^[12]

It is difficult to imagine how the integrity of this judgment-writing process can be upheld when the selection from the record of the material facts on which the decision is based is made by a person who does not have the professional experience which, presumably, justified the appointment of the judge in the first place.

One might also observe that the attractions of clinging to office well into one’s eighth or ninth decade might be reduced if the judge were required to do the hard grind of actually writing his or her judgments.

And there is a broader problem of the perception of our role. Even among sophisticated professionals, such as the Productivity Commission, there is the view that the courts are simply part of the mix of service providers in the dispute resolution industry. This view has powerful implications for the level of support which the political branch provides the courts.

If you view the courts as service providers, then it might make sense to adopt a cost recovery model as the basis for fixing court fees. We all know the other famous clause in Magna Carta: “To no-one will we deny or delay or sell justice”; but it doesn’t seem to loom large in the managerialist consciousness.

But to see the courts as providers of services is a constitutional nonsense.

An accused person who is tried, convicted and sentenced is not being provided with a service. And when a civil court resolves a dispute between citizens or between a citizen and the State, the parties are not being rendered a service; they are being governed. And the decision which resolves their dispute is the most concrete expression of the law of the land and saves further litigation because it enables the profession to advise their clients so as to avoid litigation.

By way of an interesting footnote here, the Supreme Court of Canada in Trial Lawyers Association of British Columbia v British Columbia (A-G)^[13] recently held that court hearing fees imposed by regulation in British Columbia were unconstitutional because they interfered with access to the constitutionally protected core jurisdiction of the provincial superior courts and the rule of law as a fundamental constitutional principle.

It is of the essence of what we do that we operate in public. Our decisions are the rational application of predetermined laws to facts found on evidence adduced by the litigants in open court. Unlike decision-makers in the other arms of government, our decisions are entirely subject to public scrutiny. And that is a very good thing.

It is a vital aspect of our democracy that our newspapers and other media should not be afraid of criticising our work, just as it is vital that they should not be afraid of criticising the political branches of government. But the media are rarely our natural allies. Indeed, in some respects, with the best will on both sides, unfortunately, we are natural enemies.

Some of you may have seen recently the outrage in the US media when the US Supreme Court declined to review a lower court’s order requiring a reporter for the New York Times to testify in a case of espionage brought against a former officer of the Central Intelligence Agency. The reporter claimed reporter’s privilege to protect his confidential source. The reportage emphasised that the reporter was highly respected: indeed, he had won a Pulitzer Prize.

What was significant for our purposes was that, even in the quality newspapers, there was not the faintest mention of the importance of the evidence to actually doing justice, and of the enormous social harm involved in disabling the system from getting at the real truth. If the judicial system is disabled in this way, then justice becomes only something that journalists talk about, not something that we actually do as a community.

And it is fair to say that the media do not value the careful thought and reflection which characterises the work of what has become indisputably the most deliberative branch of government. That is understandable, given that the demands of the market and the news cycle necessarily breed a “preference for heat over light and simplicity over nuance”.^[14]

So far we have been speaking of differences which are perfectly understandable given the different roles, each legitimate, which these different institutions perform. But these differences don’t explain the emergence of a wave of intemperate criticism of judges which politicians of a populist bent seek to ride.

In an important paper published in 2008 in the Journal of Judicial Administration,^[15] Dr Pamela Schulz recorded the results of a number of studies into coverage of the courts by sections of the Australian media. From these studies Dr Schulz discerned a “consistent pattern of reporting which inexorably demands that the justice system be modified”.^[16] The conclusion of a further article by Dr Schulz and Dr Andrew Cannon was that:^[17]

And of course, this discourse of disrespect enables the political arms of government to delegitimise the work of the courts knowing that they will be supported by the media and will thus garner popular support.

The most pressing challenge comes from media comment in the area of criminal law, and sentencing in particular. Judges are today subjected to a level of criticism which was unknown when I began my time as a lawyer.

It is the sad fact that bad news is more saleable than good news; and a simple story is more saleable than a complex one.

In 1997, Gleeson CJ delivered the Sir Earle Page Memorial Oration. On that occasion he spoke of the problem created by the reaction of politicians to media agitation for “a tough on crime” stance which leads to the cynicism of the law and order situation. Gleeson CJ said:^[18]

This state of affairs has not improved in the years since Murray Gleeson’s speech. We cannot allow it to go unchallenged.

There are reasons to think that crime rates are coming down across the countries of the first world. In a 2013 edition of The Economist magazine, a number of articles detailed the fall over the past 15 years of rates of crimes against persons and property in the Western democracies.

In the US, for example, the number of violent crimes across the country as a whole has fallen by 32% since 1990 and in the biggest cities by 64%. No-one quite knows why this has occurred.^[19]

One suggestion is that the ageing population means that the proportion of 16 to 24-year-old males — the most crime-prone demographic — has declined. The repopulation of the inner cities is also thought to be a contributing factor. Another view is that the increase in incarceration rates is responsible.^[20]

The supporters of this view point out that over the past 20 years, the prison population has doubled in the UK and almost doubled in Australia and the US. This seems unlikely to be the answer because in Canada and the Netherlands, prison populations have actually reduced at the same time as the crime rate reduced. And in the US, there is growing disquiet with the increasing levels of incarceration, both on the grounds of expense and effectiveness and on the ground of fairness, given that the prison population clearly reflects social disadvantage due to ethnic background.^[21]

The Economist suggests that the explanation for falling crime rates is to be found in better policing, including the advent of DNA testing, surveillance cameras, and private security, all of which have increased the risk of an offender being caught. And cultural change matters too: domestic violence has fallen as wife-beating has been socially stigmatised. Since 1994, self-reported domestic violence has fallen by three-quarters in Britain and two-thirds in the US.^[22]

Our public discourse should be informed by awareness of these realities. But the media has little interest in publishing this information. And governments will not do it because of the political advantages adverted to by Gleeson CJ, or because it would open a debate about the doubtful value of ever more deterrence in sentencing and the mounting costs of imprisoning ever larger portions of our population.

Perhaps it is a job for the JCA, in liaison with Australia’s legal professional bodies and our schools, to outflank the media. I wonder whether it might not be feasible to ensure that legal studies courses at secondary schools and criminal law and criminology courses at our universities are offered written materials or a guest lecture or two on these topics by practising lawyers. That strategy seems to offer a prospect, over time, of de-terrorising our populace.

A particularly galling aspect of the media’s discourse of disrespect, indeed, almost mystifying, is the now constant refrain that judges are “out of touch” with our fellow citizens because of our elitist self-regard. I say that it is galling, and mystifying, because in Australia at this time in history, the judiciary is more of the people than ever. Most of the people attending this conference are members of the first generation in their families to attend university.

In recent times, Gleeson CJ,^[23] de Jersey CJ^[24] and Bathurst CJ^[25] have all spoken out to make the point that their general experience of life is no narrower than the members of other occupational groups. And why would anyone doubt that in the open and egalitarian society which has flourished in Australia since the Second World War?

In the March 2014 issue of Current Issues in Criminal Justice,^[26] Professor Warner, Associate Professor Davis, Professor Walter and Dr Spiranovic considered media claims and public opinion surveys which suggest that there is a broad public perception that judges are out of touch with what ordinary people think, especially in relation to sentences, which are thought to be too lenient, so that the public is less likely to have confidence in the work of the courts. The article proceeded to examine these perceptions by a study of the views of jurors, that is to say, those members of the public who have been most closely exposed to the actual work of the courts.

Their findings were that most jurors did not agree that judges were out of touch with public opinion on sentencing. Even more interesting was the circumstance that some jurors who were prepared to accept that judges were “out of touch” did not think that this was necessarily a bad thing. These were the jurors who themselves disapproved of the populist demand for more punitive sentences.^[27]

But we are talking about only that small proportion of our fellow citizens who actually serve on juries.

There is little scope for judges to reach out individually to the broader community. Attempts to do so are likely to foster the perception that we are a proselytising elite who see ourselves as discharging the role of tribune of the people.

An example, not too close to home to be unduly uncomfortable, is Justice Sonia Sotomayor of the US Supreme Court. Her Honour has made television appearances with Jon Stewart, Stephen Colbert, Katie Couric and Oprah Winfrey. She has appeared twice on Sesame Street. She made appearances at bookstores across the US promoting her autobiography and on New Year’s Day 2014 she presided over the ball drop in Times Square in New York alongside Miley Cyrus.^[28]

Now call me old fashioned …

In April 2014, an article in The Wall Street Journal quoted Professor David Fontana of George Washington University Law School as saying that by being more accessible and showing a willingness to talk candidly about herself, Justice Sotomayor is exerting a new kind of influence and that by appearing in different places and talking about the law in a different language, her Honour has the potential to be a new kind of liberal judge by appealing to a broader audience. Her fame might bring new followers to the liberal cause. Her humanity, it is said, might make her followers appreciate the liberal cause even more. She has the potential to become what Professor Fontana calls “the people’s justice”.^[29]

Her Honour has obvious popular appeal. It might be something that could translate into a political candidacy. Indeed, it is difficult to see how her efforts are not calculated to serve that agenda rather than an educative role on behalf of the judiciary as a whole. One would not suggest that her enthusiastic accessibility is apt, of itself, to undermine the confidence in which the US public holds its Supreme Court; but what if all nine justices pursued the public cultivation of political constituencies? And perhaps more fundamentally, if the notion of a “people’s justice” has any real meaning at all, the way to achieve it is by election of judges.

In this regard, one might cite, as proof of the cynicism, if not the intellectual bankruptcy, of the criticisms that our judges are “out of touch”, that for all the populist sound and fury generated by the shock jocks, there has been no suggestion that the system should be overhauled by the introduction of an elected judiciary. In truth, of course, no sensible person would suggest that change to our community. But we need to be alert to “bell the cat” promptly should such a suggestion be made. It is not a difficult task.

In the US, of course, judges in many States are elected. The most startling thing about that is that huge amounts are spent on judicial election campaigns although judicial salaries are low — much lower than in Australia — and, relatively speaking, at an historical low throughout the US. Last year, Wallace B Jefferson, the highly respected former Chief Justice of the Supreme Court of Texas, resigned his position and returned to private practice in order to ensure that he would be able to send his children to college.^[30]

When one pauses to consider how a campaign expenditure of USD 1 million for four years’ occupation of a job which pays USD 150,000 per annum can be justified, the answer, however charitable one may be inclined to be, cannot be consistent with judicial independence whether apparent or actual. It is impossible to believe that campaign finance does not come with an expectation of some form of quid pro quo.

Corporations, political parties, unions, trial lawyers, unabashedly seek ideologically compatible State judges because their rulings can affect electoral redistributions, and decisions on workers’ compensation and medical malpractice suits.

In 2012, USD 30 million was spent nationwide on television advertising alone for State court campaigns, and attack ads are not uncommon.^[31]

The content of the advertising which appears in the course of campaigns for judicial office is sometimes nothing short of appalling.

In April 2014, an advertisement appeared on television in North Carolina alleging that Justice Robin Hudson had coddled child molesters and sided with predators in a dissenting judgment on the Supreme Court of North Carolina. The advertisement was shown frequently until the primary election. It was not published by either of the judge’s opponents in the election, but by a group that received USD 650,000 from the Republican State Leadership Committee in Washington, which raises money to promote conservative candidates at the State level. Hudson J was forced to respond to the attack on her by spending USD 86,000 on an advertisement defending her record.^[32]

At the end of April, the Republican State Leadership Committee, which had previously focused on elections to State legislatures and for State governors, announced a Judicial Fairness Initiative focused “on educating voters to better understand the ideology of candidates up for judicial branch elections”.^[33]

In the 1 September 2014 issue of Politico Magazine, an article entitled “Justice for sale”^[34] contained some harrowing details in relation to the influence of money on elective judgeships in the US. In the US, State courts dispose of 98% of all cases and more than 85% of State judges are elected. Since 2000, State judges vying for election have raised more than USD 275 million in campaign funds. There had not been a problem on this scale until that time. The explosion occurred as a result of the work of the political consultant, Karl Rove, who organised the campaign to win majorities on the Supreme Courts of Texas and Alabama.

It is in the State Supreme Courts where the nation’s tort wars are waged in cases relating to product liability, workers compensation and insurance claims. The author of the Politico Magazine article cites an official of the American Federation of Labor and Congress of Industrial Organizations (the peak union body equivalent to our Australian Council of Trade Unions) as saying: “We figured out a long time ago that it’s easier to elect seven judges than to elect 132 legislators”.^[35]

The judges themselves feel the pinch. In 2004, two judges competing for a single State Supreme Court seat raised USD 9.3 million between them. That was more than was raised in 18 out of 34 races for the US Senate that year. The winner was Justice Lloyd Karmeier, who commented about the expenditure: “That’s obscene for a judicial race. How can people have faith in the system?”^[36]

That we have avoided the appalling state of affairs which afflicts the judiciary in the US is, no doubt, due to a number of factors, structural and cultural. I would venture the suggestion that prominent among these is the professionalism which characterises the work of our courts in which, faithful to the model established so long ago in the relationship between the Inns of Court and the Courts at Westminster, the judges and the legal profession share a common experience of professional development, and lawyers still regard themselves first and foremost as servants of the administration of justice.

The professionalism which is the basis for our claim to legitimacy as the department of government whose province it is to say what the law is, is a bulwark against threats from outside as well as within that department.

The professional associations which have moulded us are our natural allies in this endeavour. They have an enduring historical stake in the success of our institution. The professional bodies are the trustees of the best traditions of the legal profession. They both influence and reflect public perceptions of the judiciary. Rightly, they have a stake in judicial appointments and their views should be heeded. When the professional bodies approve of an appointment they are, and are seen to be, expressing the confidence of the community in the new appointee as a proxy for the citizenry.

The professional bodies which represent the legal profession are our natural allies in ensuring that the public has an accurate understanding of what it is that we do. For this reason we should be exploring strategies of closer engagement with them.

For most of our professional lives the statement of Bowen LJ in Cropper v Smith,^[37] which was cited with approval by the High Court in JL Holdings Pty Ltd v Queensland,^[38] served to identify the mission of the courts as focused upon the achievement of justice in the individual case. It is a beautifully expressed articulation of a great ideal:^[39]

In JL Holdings, this statement of principle held its ground against the claims of efficient case management as an answer to the growing demands on the system of the administration of justice. The plurality, Dawson, Gaudron and McHugh JJ, said that while “[c]ase management … is an important and useful aid for ensuring the prompt and efficient disposal of litigation”,^[40] it is not an end in itself, and the “ultimate aim of a court is the attainment of justice”.^[41] And when their Honours spoke of the attainment of justice, they were speaking of justice in the ultimate resolution of a particular case.^[42]

Aon Risk Services Australia Ltd v Australian National University,^[43] and notably in the joint judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ, rejected the Cropper v Smith approach, and decisively recognised that the doing of justice in the modern world of multitudinous claims on the limited resources of the judicial system is an institutional project with a necessarily systemic element.^[44] This recognition was no more than due deference to legislated changes in the rules governing the conduct of litigation which reflected the pragmatic judgment that “[s]peed and efficiency, in the sense of minimum delay and expense, are … essential to a just resolution of proceedings”,^[45] and that the institutional responsibility of the courts is to “do justice to all litigants”.^[46] The procedures of the court must, therefore, operate with an awareness of the impact of unreasonable demands by individual litigants upon the system of doing justice and upon the reasonable expectations of all litigants that justice will be rendered efficiently and without unnecessary delay.

It behoves us all to accept that the great idea expressed in Cropper v Smith is an idea whose time has passed. That is, in my personal view, an occasion for regret; but we cannot indulge that regret so that it becomes recalcitrance.

This institutional and systemic perspective of the work of the courts has implications beyond the need to support case management.