Nowadays, judges are encouraged to get out from behind the bench, engage with stakeholders, and get more involved in the process of cases. Problem solving courts are the most prominent outgrowth of this trend, where judges spend time interacting one on one with litigants. Other examples include judges and court systems engaging in advocacy in legislative bodies, or enacting sweeping public policy by judicial rulemaking.
One label to put on such activity is judicial activism. While the term judicial activism refers most commonly to a school of thought in constitutional law, in a broader sense it applies to the conduct described above. No longer confined to debate among legal theorists, the emphasis is now more on the activism. Conservatives, concerned with tradition and the rule of law, rightly recoil from this.
Much of the writing in Judex will be a criticism of judicial activism in all its forms. For this article, however, we’ll start at the fundamental level.
Author Donald Kingsbury once wrote, “tradition is a set of solutions for which we have forgotten the problem.” Our courts have built up hundreds of years of tradition to reinforce the reality and the perception of the judge as the removed, reserved, and neutral arbiter. The most basic of these traditions are the black robe and the courtroom layout itself.
The wearing of judicial robes dates to at least the fifteenth century English royal courts. English robes were often colorful and ornate. While the tradition of the robe continued through the founding of America, from the early days of the U.S. Supreme Court the plain black robe was preferred.
Former U.S. Supreme Court Justice Sandra Day O’Connor explained in an interview, “John Marshall, at his investiture, decided to wear a simple black robe. Pretty soon, the other justices followed suit and now, all judges do it.”
As Justice O’Connor further explained, “I think the black robe shows that justice is blind. We all address the law the same, and I think it shows that once we put it on, we are standing united symbolically, speaking in the name of the law. Not speaking for ourselves as individuals.”
The black robe is a symbol. It demonstrates to the world, and should serve as a reminder to the judge, that the judge is “speaking in the name of the law.” The judge is not injecting his or her own personal preferences into the case.
The courtroom itself contains other powerful symbols of the judge being set aside. Most conspicuously, the judge’s bench is elevated, literally removed from everyone else involved. This represents the impartiality of the judge. He or she is above the fray. Similarly, the judge usually enters the courtroom through a door separate from everyone else, reinforcing his status as removed.
The elevated bench also demonstrates the judge’s authority, along with a host of other symbols. In most courtrooms, the judge is seated in front of a state seal and/or a flag, imbuing her with the power of the state. Even the gavel has importance, a symbolic weapon. Only the judge can freely wield a weapon in court, which he uses to gain or restore order.
The judge, then, is not a stakeholder among stakeholders in the courtroom. He is not a team member. He or she is set aside to a place of authority—the place from which neutral and detached decisions may be made.
The judge enjoys these privileges only in the courtroom. Outside the courtroom, the symbols, and the traditions supporting them, are not present, and the judge runs the risk of being just a person in weird clothes holding a funny little hammer.
All of this argues for judges to stay behind the bench, and avoid problem solving, advocating, and making public policy.
With hundreds of years of tradition and the continued use of powerful symbols encouraging us to remain set aside in our place of authority, we should think hard about whether we have forgotten the problems our traditions are solving.