Thursday, September 27, 2012

The Illusion of Independence

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.

          Courts make every effort to defer to the other branches.  They seek to resolve cases on narrow grounds and seek to fairly interpret legislative intent.  This deference must work in the other direction as well.  Let us hope the ultimate funding solution for the courts will take into account the necessity that the courts remain open. A magician’s sleight of hand will not work.  Let us all take another look at the judiciary's budget so that the executive and legislative's perceptions align with reality, and that strawberry jam is not mistaken for peach.  Happy Fourth of July.