Paul Grimm, Director of the Bolch Judicial Institute: Steps to Improve Public Confidence in the Judiciary

REBUILDING PUBLIC CONFIDENCE IN THE JUDICIARY

Paul Grimm, Director of the Bolch Judicial Institute, examines the lack of public confidence in the judiciary and offers steps to address it.

Public confidence in the U.S. judicial system, a key underpinning of the judiciary’s strength and independence, is lagging. This is a concern that Lawyers for Civil Justice is examining at its member meetings. The Honorable Paul W. Grimm, the Director of the Bolch Judicial Institute at the Duke University Law School, the David F. Levi Professor of the Practice of Law, and a widely respected retired federal judge, keynoted LCJ’s Spring 2023 membership meeting in Washington, DC, examining what can be done to improve public confidence in the U.S. judicial system. Judge Grimm’s remarks are excerpted below:

Like most difficult questions, there is no simple answer. But I will do my best to provide you with some insight into this challenge, and what we might be able to do to address it. … [The Bolch Institute] spends a great deal of time thinking about the rule of law, as well as the critical role that judiciaries play in preserving it and our democratic form of government. And while our topic today is the United States’ Judicial system, the Bolch Judicial Institute’s focus on judging and judiciaries throughout the world confirms that adherence to the rule of law, judicial independence, and public confidence in judiciaries is under considerable stress both at home and abroad.

It is helpful to start with the basics to better understand the situation in which we find ourselves. We start with the concept of the Rule of Law, without which there can be no democratic form of government or the protection of fundamental rights. The concept of the Rule of Law is that the three branches of government, elected by the public, enact, execute, enforce, and interpret laws that apply equally to all persons without favor or preference, and no person, institution, organization, or corporation is above the law. In other words, a government of laws, not of men. Often, the laws that are enacted, executed, and judicially interpreted and enforced result in outcomes that portions of the public do not like or agree with, but they nevertheless are willing to accept as binding, because they have recourse to change the laws through participation in the electoral process. You don’t like a law, vote in a new legislature. You don’t like an executive order, elect a new executive. You don’t like a judicial decision, vote for a different judge (in states where judges are elected) or a different executive to appoint different judges. But, until those changes take place, you accept and adhere to the existing laws and judicial rulings. It is clear that for the Rule of Law to prevail, the public must have confidence in the governmental institutions that create, enforce, and interpret the laws. Without the willingness of the public to accept governmental actions, there can be no Rule of Law, and democratic government itself is at risk.

There is another aspect of the Rule of Law that is important—the role of the separate government branches in exercising checks and balances with respect to the actions of the other branches. This is achieved by having three co-equal branches of government that accept the fact that their ability to act is constrained by the other branches, and their willingness to accept that constraint.

In sum, we cannot have our democracy without the Rule of Law. And we cannot have the Rule of Law without the public’s willingness to accept laws and court decisions that they disagree with. Moreover, the Rule of Law cannot exist without the acceptance of the separate branches of government that there are limits to their authority, and the other branches have a legitimate role in enforcing those limits that they must then respect and accept. Since our subject today is the judiciary, this is where we will focus.

There is quite a lot going on at present that is cause for concern about the relationship between the state and federal judiciaries and the public, and the relationship between the judiciaries and the other branches of government. Let’s look at some specific examples:

• We will begin with a Gallup poll taken in 2022. It found that only 47% of the pubic had a “great deal” or “fair amount” of trust in the judicial branch of the federal government—a 20% drop from 2020. Similarly, the poll showed that only 25% of the public had “quite a lot” of confidence in the Supreme Court, down 21% from 2021. Many other polls taken in the recent past found similar declines in public confidence in the federal and state judiciaries.

• Next, we can consider two recent examples of clashes between a state legislature, and its judiciary. First, in 2017, news reports about extravagant spending on office furnishings by some West Virginia Supreme Court justices led to the state House of Delegates to impeach the entire state supreme court. A judicial challenge to the legislature’s impeachment proceedings resulted in a ruling by the acting supreme court justices that those proceedings were unconstitutional. A constitutional crisis was averted by a constitutional amendment approved by the voters of the state that allowed additional legislative oversight over the budget of the state judiciary. The resignation of some of the justices for the supreme court and their replacement by new justices committed to reforming the fiscal abuses that had occurred ultimately eased the friction between the legislative and judicial branches in that state. But for several years, the legislature and the supreme court were at sword-points.

• Similarly, in 2021, a bill passed in the Montana legislature to eliminate the state’s judicial nomination commission, thereby allowing the governor to directly appoint state judges without prior merit screening. This resulted in the filing of a direct action in the Montana Supreme Court challenging the legislation’s constitutionality. This led, in turn, to a legislative investigation of the court administrator of the Montana judiciary and a legislative subpoena was issued for the emails of all the state’s judges to examine their responses to an internal poll of their views on the new legislation. A motion to quash the subpoena was filed by the court administrator, and the supreme court issued a stay order halting the enforcement of the subpoena until it could rule on privilege claims regarding the judges’ emails. Then the legislature subpoenaed each state supreme court justice directly to produce their emails, and the Montana Department of Justice sent a letter to the state supreme court saying that it did not view the court’s stay order as binding. The legislature also commenced an investigation into alleged misconduct within the judicial branch and moved to recuse the entire supreme court from the pending actions challenging the legislative subpoena of the emails and the new judicial appointment legislation. The supreme court issued two opinions: One denied the recusal motion and ruled that the subpoenas served no valid legislative purpose, were over-broad, invalid, and constituted an attempt to interfere with and intimidate another branch of government. The second ruled that the challenged legislation changing the appointment of state judges was constitutional, which seems to have ended the show-down… [T]he fight between the legislature and the supreme court had been bare knuckle.

• Another poll, taken in 2022 for the National Center for State Courts sheds a lot of insight into the decline in public confidence in the judicial branch. The company that conducted the poll prepared a report for the National Center that discussed the findings of the poll. They are extremely informative, and worth reflection:

  • The report concluded that the highly polarized political environment in the Country as well as reporting about key U.S. Supreme Court cases have combined to dramatically impact the way Americans view the [judiciary] at all levels.

  • The report observed: “Every year, this survey serves as a reminder that most Americans are not focused on the court systems in their daily lives and have only the most rudimentary understanding of how these systems work. Educational messaging can move public opinions in the short term, but such messaging has to start from understanding of how little time most Americans ever spend contemplating the issues that consume those working within the court system every day.”

  • The report addressed the public’s loss of confidence in the judicial system, and reached the following conclusions: 1) the Supreme Court leads accelerating loss of public confidence in all levels of the federal and state judiciaries; 2) while declines in confidence in state and lower federal courts are lower than the decline in confidence in the Supreme Court, public confidence in judiciaries in general is at its lowest level in decades; 3) the decline in public confidence is driven by two related variables: race and political ideology. Thus, loss of confidence in the courts was less among conservatives than among moderates and liberals. Similarly, loss of confidence among whites was less than loss of confidence among communities of color.

  • Focusing on public confidence in state judiciaries, the report concluded that although overall confidence in state courts was adversely affected by the broader political narrative regarding the U.S. Supreme Court, public confidence in state courts had slightly improved compared with 2021, although more than 51% still felt that state courts’ overall performance was “fair to poor”, while only 49% rated it as “excellent” or “good”. Again, demographics matter. Confidence in state courts was much higher with whites compared with blacks; higher among men than women; higher among older people that younger ones. Notably, when asked whether certain variables described state courts “well” or “not well,” 53% said the word “political” described state courts “well” and only 33% said it described state courts “not well”.

  • Finally, the report observed new lows in public confidence in whether state court systems were fulfilling their missions. Of particular concern was a shift in perceptions of whether state courts decision making was biased. There was a shift from net agreement that court decisions were unbiased to net disagreement that they were unbiased.

So, what conclusions can we draw from this sample of troubling news? I will suggest the following:

• There is no single cause of the decline of public confidence in the judicial system in the United States. Instead, there are many contributing factors. First, the highly publicized political polarization within the country is an important contributor. This is fueled by highly charged reporting about the confirmation process for Supreme Court justices; the dramatic increase in the amount of money being spent on judicial elections in state courts, often coming from sources outside of the states themselves (for example, the Wisconsin state Supreme Court election last month, the most expensive state court election in history); increasingly polarized (and often erroneous) reporting about courts and judges in traditional media as well as postings in social media platforms.

• [R]eporting about high profile cases dealing with the most difficult and divisive issues in our country draw almost all of the attention of the media and the public, and there is little or no attention paid to the mine run of cases that courts decide that vastly outnumber the high-profile ones. Thus, the conversation is focused on the disputes where public opinion is most likely to be divided.

• [S]ocial media makes it easier to voice negative, inaccurate information about the courts to an enormously wide audience, and there are few effective means to dispute or rebut such misinformation once it is disseminated. This leads to an increase in public cynicism and mistrust.

• [I]t is essential to keep in mind just how little time the public at large spends focusing on the judicial system in their daily lives, how little they understand about how court systems operate, and the often-inaccurate sources of information they are exposed to that shape their perceptions of the judicial system. This is exacerbated by the decline of emphasis on civic education within the education system, at all grade levels.

• [W]hile the public as a whole has lost confidence in all levels of the judicial system, the public is not monolithic, and within the public at large there are different degrees of loss of confidence depending on ideology, age, race, and gender. This means that efforts to repair the public’s loss of confidence must be focused on particular demographics that need to be reached. Similarly, there are different degrees of loss of confidence in the state and lower federal courts as compared with the Supreme Court, which decides fewer that 60 cases a year, but those decided deal with the most difficult and controversial legal issues that are most likely to be the subject of great disagreement among sizable portions of the public.

So, where does all this lead us? It is far easier to identify problems than to solve them, right? But there are steps that courts, judges, lawyers, and corporations and institutions that depend on the courts to fairly and efficiently resolve disputes can and must do. In a real sense, we all must be willing to spend more time lighting candles than cursing the darkness. But in looking for solutions, it is essential to keep in mind that the decline in public confidence in the judicial system has been taking place for decades and is due to a complex set of factors. Reversing this trend is not susceptible to a quick fix and cannot be accomplished without broad buy-in from key stakeholders: the courts themselves, the bar, organizations and corporations that depend on the ability of the courts to function effectively and fairly. None of us can afford to sit this out on the sidelines. So, where do we start?

CIVIC EDUCATION: There must be a coordinated effort to address the lack of knowledge the public has about the judicial system, and the remoteness of the courts to their daily lives and concerns. There is no shortage of organizations that have prepared excellent civic education materials. But the sheer number of them and the lack of an overarching platform or repository for their content can make it difficult for schools, courts, legal organizations, and civic organizations to find source material specific to their educational goal. Similarly, there is no overall nation-wide structure to coordinate civic education initiatives throughout the country or measure the success of specific educational initiatives. And careful attention needs to be paid to the sources of information upon which different segments of the public turn to for information about the judicial system. Increasingly, this is not traditional media, but online platforms such as YouTube, Twitter, Facebook, Instagram, and Google. As the Canadian communications guru Marshall McLuhan famously said in the 1970s - “the medium is the message”. We have to reach our audiences at the places where they are paying attention and getting their information.

ACCESS TO JUSTICE: One of the hallmarks of a well-functioning judicial system is the ability of all members of the public to have access to it to seek redress of their claims and disputes. But increasingly, an ever-larger segment of the public lacks access to the system because they cannot afford representation. We have long known this because of the steadily growing number of self-represented litigants in our state and federal courts. These cases require disproportionate amounts of court time (clerk’s office as well as judicial), and I do not have to tell this audience about the increase in cost and difficulty of being in litigation brought by a self-represented litigant. Much can be done to address this, including courts doing a far better job of giving the public access to resources and information that would assist them in accessing the legal system in a manner that allows cases to proceed without excessive delay and cost. Advances in technology can help immensely, as well as better design of court websites to assist self-represented litigants in finding forms, court rules and policies. Lawyers and bar associations can do much to assist litigants who have meritorious claims get them heard in court. The bottom line is a judicial system that increasingly is out-of-reach of the public it is supposed to serve will not be able to maintain its respect. We have overlooked this for too long.

RESPONDING TO MISINFORMATION OR INACCURATE INFORMATION ABOUT JUDGES AND THE JUDICIAL SYSTEM: The morning after I retired from the federal court, I awoke with the realization that I no longer was prohibited by codes of judicial conduct that make it so difficult for judges to walk the line between appropriate and inappropriate public dialogue about the work that they do. When there is an unfounded, erroneous, or personal attack on a judge or ruling, that judge cannot publicly defend themself. But the bar can. Letters to editors can be written. Responses to social media misinformation can be put online in a manner that supports wide dissemination of accurate information. Such responses can be coordinated by lawyers in each city, state, and jurisdiction where there are media reports that unfairly or inaccurately discuss the judicial system, a case outcome, or a judge. But these must be coordinated, ongoing, focused by audience, continuous, and capable of fast response, given how frequently the news cycle changes. To date there has been far too little done by bar associations and attorneys to defend the judicial system, and they no longer can afford to be mere bystanders.

REFORMS WITHIN THE JUDICIAL SYSTEM: I suspect that I am preaching to the choir when I tell this audience that the resolution of civil cases in federal and state courts still takes too long, is too expensive, and can be inefficient. Courts must improve their interactions with litigants and the public, leverage technological advances, modernize their websites, tackle backlogs, and focus on customer relations. The health care system has made remarkable progress in such improvements in the last decade, and there is no reason why courts cannot also do so. But this change cannot be truly effective unless courts are adequately funded, their IT and technical platforms are modern and secure, and the increase in the volume of cases filed is counterbalanced by increases in the number of judges available to keep backlogs in check. At present, most court systems are overloaded with cases, and too many judges have overwhelming caseloads.

JUDICIAL CONDUCT: Finally, a word about judicial conduct. The past few years have revealed uncomfortable reports about judges failing to recuse themselves from cases where they had a financial interest or conflict; judicial misbehavior towards court employees, and behavior towards lawyers and litigants that is rude, bullying, or hostile. While we like to think that these cases are the outliers, and I truly think they are, it does not take many to create a public perception that judges think of themselves as above the law. When combined with the overall negative depiction of judges in TV, movies, and other media, and the near total absence of stories about judges who work nights and weekends to keep up with their cases, or who treat litigants and the public with respect, and the fact that the vast majority of the public has almost no personal or frequent contact with the courts, it is easy to see how the public at large can be left with a bad impression of the judiciary as a whole. Courts can command obedience from those who appear before them and enforce that obedience with sanctions. But they cannot command respect, they must earn respect. Judges that do civic education in schools or other venues, or give speeches about the judicial system on Law Day, or take advantage of similar outreach opportunities, can help to improve public perception of the judiciary. Not to mention strict adherence to judicial codes of conduct.

…[T]he American judicial system still is looked up to by other judiciaries throughout the world as fair, impartial, and effective. Judges from other nations constantly turn to our judiciary when looking to improve their own. We have much to be proud of in the things that our judicial system does well, and we need to keep sight of this. But it is indisputable that we face many challenges at present here at home, and a lot of hard work needs to be done to improve public confidence in the judiciary. In doing so, there is no room for anyone to observe from the comfort of the sidelines. Courts, judges, lawyers, bar associations, and organizations like Lawyers for Civil Justice, and the Bolch Judicial Institute at Duke Law School must be willing to take up the calling and do what must be done to support the effort. Please think about how each of you, whether in-house counsel, outside counsel, or client can find a way to help. I will leave you with a quote from John W. Davis, a famous Supreme Court advocate of the last century. In a speech before the Virginia State Bar Association in 1926 titled “Thomas Jefferson, Attorney at Law” he said this: “In the heart of every lawyer, worthy of the name, there burns a deep ambition so to bear himself that the profession may be stronger by reason of his passage through its ranks, and that he may leave the law itself a better instrument of human justice than he found it.” Each of us in this room can leave the law a better instrument of human justice than we found it at the start of our careers, if we do our part now to help restore the public’s confidence in our judicial system and its judges. I hope you will join me in this undertaking.

Thank you.

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1 The Bolch Institute’s mission is to support and protect the rule of law and judicial independence in the U.S. and abroad.