In two days it will be Independence Day. But lately I am plagued by this nagging fear
that the majestic adjective preceding the noun may be an illusory description. However jaded I sound, my dismal outlook is
not surprising. What else can you expect
from a judge concerned about judicial independence?
I always had
this notion that despite the tension between our three branches of government,
the judiciary, like the other branches, is independent. But this independence is not absolute. The judiciary receives its funding from the
legislative branch, and both branches have often argued about how much funding
is enough. But despite occasional skirmishes,
there was never a doubt that the courts would exist and do their job.
This was my
unshakable perception. An article in The New York Times on Sunday, June 24th,
entitled The Science of Illusion, by Alex Stone, created fissures through the
certainty of my perception. The article
points out that our visual perception of reality lags a fraction of a second
behind what we see. This enables the
adroit magician to dupe you into believing he has placed a coin in one hand,
which he hasn’t, and astound you by producing the coin in the other hand. A skilled conjurer plays on a person’s
“cognitive bias” to astound, delight or trick.
Scientists
are using some of the magician’s tricks to study our perceptions and the
decisions we make that flow from them.
Experiments have led scientists to reach disturbing conclusions. Reality and our perception of it are not
always the same, and this leads to a lack of awareness about how we arrive at
many of our decisions.
For example, subjects were asked to
decide which of two jams they prefer. After the subjects chose their favorite
jam, through sleight of hand, the jams were switched, so that the subjects
thought they tasted the original jam on a second taste test. Apparently influenced by their original
choice, the subjects invariably chose what they had considered the less
favorable jam on the second taste test, even though the jams had dissimilar
flavors.
This would be
a good test for all of us, and judges in particular. It alerts us to be aware of how faulty the
premises upon which we make our decisions can be. And this takes me back to what could be my
faulty perception about judicial independence.
Certainly the judicial branch carries out its responsibility to decide
cases that often have important consequences for the other branches. But that assumes the courts are open to
fulfill their constitutional mandate.
A popular
song from a Broadway show in the 1920's was titled "Yes! We Have No
Bananas." So yes we have no money
to sustain government as we knew it in the past, and large budget cuts are
necessary. And yes worthwhile programs
are being dismantled causing great suffering among some of our poorest and most
vulnerable citizens. And yes, without
doubt, the courts must bear their burden of the cost cutting even though the
judiciary’s budget is less than 3 percent of the total budget. The judiciary has dramatically cut the CCMS
program, halted numerous court construction projects, and laid off countless
staff. And specific court reserve funds
are being used for current expenses. But
the impending closure of civil courtrooms constitutes a serious threat to the
judiciary’s existence as an independent third branch of government.
In
Shakespeare’s Henry the VI, Part 2, Jack Cade, a rebel who seeks to
overthrow the king and the established order, instills fervor as he addresses
an unruly mob. A butcher yells, “First
thing we do, let’s kill all the lawyers.”
I have seen this famous line enshrined on the wall of more than a few
lawyers’ offices. I suppose they were
trying to convey they are tough advocates who will fight for the client’s cause
at all costs.
But, in fact,
the butcher’s comment is a brutish recognition of the importance of society’s
legal institutions to resolve disputes in courtrooms instead of in the streets. Without a full functioning system of justice,
society faces anarchy. I do not suggest
that the closure of many civil courtrooms throughout the state will plunge us
into anarchy, but it will have serious far-ranging consequences. It will greatly increase the sense of
hopelessness many citizens feel in the current economic climate. Many defendants facing likely economic
sanctions for a variety of civil misdeeds, whether they be large corporations
or single individuals, whether they be in family law court, probate court or
small claims, will have no incentive to settle, or to resolve their cases in
arbitration. The cynical rhetorical
question is “Why should they?” The sting
of a righteous lawsuit is greatly reduced when the trial, if held at all, will
be in the distant future.
I have heard
much about the so-called Great Depression in the 1930’s. My parents graphically described what life
was like then. As bad as things appear
today, my second-hand impression of what it was like in the 1930’s leads me to
conclude we are far better off today than we were then. Yet, even back in the 1930’s, anecdotal
reports from people who are still with us today tell me that the courts were
still open.
