Feb 02, 2019
The Lawyer as Revolutionary: Protecting the Independent Judiciary
Feb 02, 2019
By David F. Feingold, Esq.
How often do you think of yourself as a revolutionary? If the answer is not very often, you should—more often.
In Pakistan, there is an ongoing battle for an independent judiciary, which flared up in the 2007 “Black Coat Protests,” in which well-dressed lawyers took to the streets in response to the government’s suspension of the chief justice of Pakistan's Supreme Court. The protests escalated and in November of 2007, there was a nationwide crackdown on lawyers, which included a raid on the Lahore High Court Bar Association in which police baton-charged and threw tear gas into the premises and arrested over 800 lawyers. In the end, the protests, also known as “the Lawyers Movement,” were successful in having the chief justice reinstated. But the struggle continues.
Pakistani lawyers look to the United States for inspiration in defending the judicial system. They know how critical it is to have a system of government with checks and balances, and how an independent judicial system ensures that a true democracy is a government of laws and not of men. An independent judiciary is one that is free to uphold the rule of law without prejudice against or favoritism toward special interests, political or otherwise. A special interest might include an unsatisfied litigant, a corporation, the hard-core base of a politician, the majority or ruling class, or any other individual or group advocating a specific position.
Critical to the judicial branch is the public’s confidence in the system and the jurists and lawyers who work within it. When the system is attacked, its defense is critical to preserving that confidence and hence the system itself. Yet it is not (generally) the courts and the judges who can or will provide that defense, as they are ethically and legally restricted in their ability to respond. This restriction is important to prevent interference with pending litigation, to ensure the dignity of the judicial system, and to keep it independent of political pressures. But this restriction also means our courts need to have others speak out for them when they are attacked.
We have a chief executive of the United States who has mounted an unprecedented attack on an independent judiciary. To the extent these attacks are successful in eroding public confidence, it is largely due to the fact that, as founding father Alexander Hamilton noted, the judiciary is the weakest branch as it has "neither sword nor purse." Throughout history, it has been observed that independent judicial systems might not have sword or purse, but they have made up for that with, as Indian journalist Mythili Bhusnurmath put it, “an abundance of courage and independence and lawyers of rare caliber and integrity.”
In pre-revolutionary Boston, it was the lawyers in the upstart colonies who were the leaders in demanding liberty and justice from the British. Thomas Gage, commander in chief of British forces in the early days of the revolution, made it clear in a 1765 letter to King George that “the lawyers are the Source from whence the clamors have flowed in every Province.”
Fast forward 250 years and we see a world in which the gains that have been achieved in establishing and protecting independent judicial systems are being eroded. The right-wing populist movements that are taking root in many countries are marked by anti-establishment rhetoric, which more often than not includes attacks on the judicial system.
While bar associations like the MCBA have an important role to play, you as an individual lawyer can also be a staunch supporter of an independent judiciary. Indeed, both the California Code of Professional Responsibility and the Model Rules of Professional Conduct require lawyers to defend judges and the judicial system against unjust criticism. You do not have to like or defend any particular ruling or outcome. But you can help your family, friends, and neighbors understand why the rule of law and an independent judiciary are critical to our freedoms.
It is clear that 2019 will be a year in which we have to be especially diligent about responding to attacks on the judicial system. As you contemplate your role in preserving the independence of the judiciary, you might find instructive what others have said about its importance; following this article are a few select quotes that may even offer some inspiration. While I doubt you will ever find yourself lobbing tear gas back toward police lines to fight for justice, keep the image of a Black Suit Protester in mind as you do what you can, when you can, to help the cause.
Selected Musings on an Independent Judiciary
The complete independence of the courts of justice is particularly essential in a limited constitution. By a limited constitution I understand one which contains certain specified exceptions to the legislative authority ... Limitations of this kind can be preserved in practice no other way than through the medium of courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void. Without this, all the reservations of particular rights or privileges would amount to nothing. — Alexander Hamilton, The Federalist No. 78, 1778
The accumulation of all powers, legislative, executive, and judiciary in the same hands … may justly be pronounced the very definition of tyranny. — James Madison, The Federalist No. 47, 1778
The recall of judges and their decisions would necessarily destroy the keystone of our liberties by taking away judicial independence, and by exposing to the chance of one popular vote, questions of the continuance of our constitutional guarantees of life, liberty and property and the pursuit of happiness. — William Howard Taft, 1912
The independence of the courts is, to all of us, the guarantee of freedom and the equal rule of law....It must, therefore, be the first concern of the citizens of a free country to preserve and maintain the independence of the courts of justice, however inconvenient that independence may be, on occasion, to the government of the day. — Winston Churchill, 1950
It is not our place to be “knee-jerk” defenders of individual judges who are criticized. But we can and must be “knee-jerk” defenders of an independent judiciary and the rule of law, of civility in the courtroom, and of due process. — Marin County Bar Association, 2003
There’s a disturbing trend, both in strident language and in the bills introduced by legislators, away from judicial independence. We have to seize the opportunity when somebody says something stupid to explain the role of judicial independence in a democratic society. We, as a bar, have to try and calm things down. — New York State Bar Association, 2005
The organized bar has to talk about what judges do and defend to the death what the Third Branch of government does. Every organized bar should have a committee of lawyers prepared to write or speak on behalf of the need for an independent judiciary. — Pennsylvania State Bar Association, 2005
Let’s get one thing straight: the ABA will not compromise or negotiate the independence of America’s judiciary. We must address the current atmosphere in which our courts operate—whether state or federal—and what can only be called a decline in civility and respect toward our justice system. Our worsening atmosphere is as deadly a weapon against an independent judiciary as is any individual assailant, and carries with it the potential to do greater harm because it uses stealth, not blunt force, to achieve its goals. It eats away at and alters the public’s perception of judges and the justice system until the judiciary is neither understood nor respected. — American Bar Association Past President Robert Grey, 2017
To maintain the fair and independent administration of justice, lawyers should defend Judges and courts unjustly criticized. Lawyers also are obligated to maintain the respect due to the courts of justice and judicial officers. (See Bus. & Prof. Code, § 6068, subd.(b).) — California Rules of Professional Responsibility, Comment to Rule 8.2
David F. Feingold, Esq. is a partner at Ragghianti Freitas LLP. He served as MCBA President in 2003 and spearheaded the adoption by the MCBA of a policy that authorized the MCBA and its President to speak out on behalf of the judicial system.