Re-Judging the Courts

The LA-Times has an article up about legislation to check judicial power in many states.

Judges across several Western states could soon face new limits on their authority and threats to their independence, as conservatives campaign for ballot measures that aim to rein in what they describe as “runaway courts.”

Frustration among the right has been building for years, especially since the high court in Massachusetts legalized same-sex marriage in 2003. Politicians and pastors have accused judges of ignoring the public will and legislating from the bench.

The solution to having ‘activist judges?’ Let people take them to court.

That’s right. In South Dakota the ballot has a proposition that would allow private individuals to sue judges for their rulings. What would this do? It would stop any realistic judicial work. It is a populist measure designed to destroy the judicial branch of the government.

Other measures include limiting terms for top judges in Colorado, the right for residents to recall ‘dissatisfactory’ judges in Montana or the election of Supreme and Appeals court justices by geographic district in Oregon. The idea is to better reflect the (conservative) motivations and values of the communities they serve. The article continues

Supporters cast their efforts as populist and democratic, a way to make judges answer more directly to the citizens they serve. “This is a very measured and mild response to the perception that our courts are out of control,” said John Andrews, a former legislator promoting the amendment to impose term limits in Colorado.

Opponents, however, warn that the initiatives would begin to dismantle the system of checks and balances set up under the U.S. Constitution.

The idea behind having a long term judiciary is to attempt to keep populist and activist politicians and demagogues from gaining power. This is slowly losing ground against a reactionary, theocratic, conservative base.

But why do many people feel the judiciary is out of control?  Is the problem the judiciary? Is crime rampant in America? Or is it the American idea that everyone should have their day in court?

First, the explosion the relative number of attorneys in the past 30 years has had an amazing effect both on what Americans feel justice is but in how law is practiced. How significant is this effect? One way is to look at the number of people entering the bar every year. (Which was also the only online statistic I could find, I would have preferred total lawyers, but couldn’t find historical data.) The chart below shows the number of new admissions to the bar association per year verses the US poplulation.

New Memberships ABA vs US Poplulation

This shows that, in the last 40 years, the number of new lawyers has increased by a factor of five while the US population has only increased by a third. As higher education becomes more available and because attorneys traditionally have been seen as a higher income profession, the number of lawyers has increased. These well trained individuals need something to do. They then start litigating cases which would have been considered silly or at least marginal 60 years ago. They also go into lobbying and politics. If something needs legislation, it is the number of new attorneys and not the judicial branch of government.

Is there a need for so many lawyers? For some reason I don’t think the US has dropped into a new form of lawlessness. Even though, according to the International Centre for Prison Studies at King’s College London, the US is raked number one in the world for prisoners per capita (738 per 100,000) and  total prisoners (2,186,230). The religious right may point to the disintegration of moral fiber, things like a new low in marriage rates. But while the US may be less safe than other western countries, the idea that crime or immorality is destroying the country is overblown.

Perhaps most damaging is the willingness to litigate in almost any situation. This is caused by an excess in attorneys, an increase in awards and higher number of situations actually taken to litigation. This is exacerbated by an increasing division between fanatics willing to push almost any position as far as they can. It is, however, also caused by large corporations such as insurance companies or big tobacco using the courts as a stopgap for avoiding responsibility.

This it isn’t the judiciary that needs replacing. It’s the mindset of the population coupled with well funded corporate legal departments that need to change. Unfortunately, in my opinion, the possibilities of turning back the clock and reducing the lawyer to person ratio remain slim.

But until that happens, let’s not re-judge our courtrooms.

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