Judicial Independence and the Rule of Law (2021)

Judicial Independence and the Rule Of Law

19th October 2021,

[1] I stand before you thrice blessed. First, I am honoured to have been asked to deliver this 11th Lecture in the name of so great a judge as Donald Macfadyen. Sir David Edward’s tribute to Lord Macfadyen in the 2010 inaugural lecture bears repeating:

‘There is no one who more perfectly represented the ideal of what a good Scottish judge should be than Donald Macfadyen: courteous and good-humoured but always in firm control of himself and his court; learned but not pedantic; lucid in thought, in speech, and in writing; kind and understanding with a quiet, understated sense of humour; and, as he showed in his long last illness, immensely courageous.’[1]

What an inspiration he was, and still is, to so many! I wish I could have known him.

[2] Second, I am honoured to join in celebrating the bicentenary of Session Cases, the oldest report series in the United Kingdom and the Commonwealth. In the first case reported, Strang v McIntosh, dated 12 May 1821, McIntosh had colluded with his uncle, a parishioner in Reverend Strang’s church, to shield assets from seizure to satisfy a decree for payment of the Reverend’s compensation. The First Division of the Inner House reversed the sheriff court and ruled for the Reverend in a two-page report. Publishers usually thrive on volume, so two pages was perhaps an inauspicious beginning, but reports of court decisions have grown longer, and Session Cases has remained in continuous publication for more than 200 years. Congratulations.

[3] And third, I am honoured to be the first American judge to be asked to deliver the Macfadyen Lecture. It is only fitting, since the ancestors of one of Texas’s founding fathers, Sam Houston, were a titled family from the village of Houston in Renfrewshire, and young Sam was raised Presbyterian. Also, while Texas was admitted to the Union in 1845, Texans still regularly rankled by federal policies and jostlings among the states repeatedly threaten to secede. Independence! I have been reading The Scotsman for months in preparation for this trip, and I see Texans and Scots share a powerful, ongoing interest in independence of various sorts.

Judicial Independence: Challenges Old and New

[4] I want to think with you for a few minutes about judicial independence. The UK Supreme Court’s unanimous decision in Miller II,[2] affirming the Court of Session[3] and voiding the prorogation of Parliament in the run-up to Brexit, drew attention in US legal circles because of your courts’ intervention in so sharp a political dispute involving the Prime Minister and dividing Parliament. Reactions in the UK for and against the Court were strong. For us across the pond, they were old hat. Publicly critiquing judges’ decisions is something I think we’re more accustomed to in the United States, though, from media reports I’ve seen, you appear to have gotten the hang of it rather quickly. A decision is, on the one hand, deplored as judicial activism and, on the other, extolled as judicial courage. Post-Miller II ‘reforms’ to oust the Supreme Court from cases with constitutional issues are rumoured. ‘Hands off!’, opponents warn. Prorogation is no longer the issue. Judicial independence is. The case is gone. Its effects on the rule of law remain to be assessed.

[5] Indeed, the proposed Judicial Review and Courts bill now pending in Parliament, and Justice Secretary Dominic Raab’s interview with the Telegraph two days ago,[4] have thrust judicial independence front and centre for you. It will be fascinating to see what changes, if any, come to quashing orders tailored to give ‘adequate’ relief, and any impact on judicial review.

[6] Six months after Miller II, Anthony Kinahan emailed me about delivering this Macfadyen Lecture. That was on 6 March 2020, two days after Texas’s first reported case of Covid-19. A week later, a state of disaster was declared in the United States, and Scotland suffered its first fatality from the virus. Since then we have all traversed unimaginable terrain. The pandemic has profoundly impacted the justice system. For perhaps the first time in history, we have wondered whether courts could physically continue to function. Texas’s 3,220 judges — spread across 254 counties, some very urban but most very, very rural, in a state nine times larger than Scotland — instantly ceased all ordinary operations. But within days, we were determined: courts must be open. Our Office of Court Administration acquired Zoom licences for every judge, and soon we were conducting most hearings with participants appearing remotely over the Internet — something we had rarely done before. Until Covid, I thought ‘zoom’ meant only ‘to go really fast’. I had no idea it was a platform for virtual gatherings. Now, in the past 19 months, Texas judges have conducted more than 1.8 million remote hearings lasting over 5 million hours and involving over 6 million participants. Scottish courts have faced the same challenges, as have justice systems around the world. Now, as we hope, on the back side of the pandemic, we must contemplate seriously what new normal will look like.

[7] The pandemic has raised new questions for the rule of law. How far can government go in limiting individual liberties to protect public health? Which authority decides: state or local? Can crowds be prohibited or restricted for extended periods? Can mask wearing and vaccines be mandated? Or mandates forbidden? These issues surround and have become very political at the same time they are being litigated in the courts. The pandemic provides a new context for us to assess the rule of law and the importance of judicial independence in protecting it.

[8] I begin with the importance of judicial independence to the rule of law. Then we’ll turn to threats to judicial independence: external threats — from the other branches of government, judicial selection and retention processes, the media, and emerging disinformation campaigns — as well as internal threats like barriers to access to justice. And finally, we’ll consider responses to those threats, by lawyers and judges, to strengthen the judiciary, personally and institutionally, to the good of our democracies, in my country and yours.

The Importance of Judicial Independence

The rule of law

[9] Three principles are fundamental to the rule of law. The first is that the law must be applied based on relevant evidence. A party’s wealth, or lack of wealth, should be irrelevant. Moses was told that judges must not ‘be partial to the poor or defer to the great’.[5] Power should be irrelevant. The government cannot be preferred over the individual just because it is the government, or vice versa. Businesses and consumers cannot be preferred, one over another, because of status. Politics should be irrelevant. Politics has a role in enacting laws but no role in applying them. Inscribed over the entrance to the United States Supreme Court building are the words ‘Equal Justice Under Law’. The rule of law must treat likes alike. It must treat all equally.

[10] The second principle is that the rule of law must afford procedural due process. Judicial decisions must not be made without giving those affected notice and an opportunity to be heard. And the law’s processes must not — not as structured, and not in operation — disfavour those with limited means, as, for example, persons unable to afford legal counsel, or particular ethnic or racial groups. The law must be applied equally, and legal processes must operate fairly, providing access to all.

[11] Relatedly, the rule of law must operate transparently. Proceedings must not only be open to the participants; they must be open to the public and the media. Perceived fairness is as important as fairness in fact. The effectiveness of the rule of law rests not only on its just resolution of disputes but also in the public trust and confidence reposed in it.

[12] The third principle fundamental to the rule of law is that there must be judicial independence from forces that would distort the law’s application in violation of the first principle or the legal system’s processes in violation of the second. The independence must be institutional. That is, the judicial branch itself must be structurally and actually independent of outside influences, whether from the executive and legislative branches, or from the media, or from popular opinion. And judicial independence must also be personal. A particular judge must not be pushed to apply the law other than according to its terms, based on the evidence, after all concerned are fairly heard. Pressure to do otherwise cannot come from the judge’s friends, or from lawyers, certainly not from legislators or other policymakers, and not from special interest groups. And when pressure comes anyway, judges must not yield.

No independence from criticism

[13] Of course, neither the judiciary nor individual judges are — or should be — free from criticism. Judges make mistakes. Decisions can be flawed. As an appellate judge, I think I see them regularly. Judges disagree with each other. Those who disagree with the court system or specific decisions are certainly free to say so, even when their criticism is unfair and wrongheaded. But they should recognise that destructive criticism, while permitted in a free society, carries a price tag for the justice system itself. Recognising this, many are the lawyers who, when asked about an adverse ruling, reply simply: ‘I disagree with the ruling, but I respect the judge.’ Appellate judges in dissent from their colleagues in the majority ordinarily stress that they ‘respectfully dissent’. Disparaging the judge personally tends to impugn all his rulings, popular and unpopular.

No independence from accountability

[14] Nor are judges independent of the accountability all public officials owe the people for their stewardship of power. Importantly, for the judiciary, the measure of fidelity is different. The Executive and Legislature must uphold the law, of course, but they must also answer for representing their constituents, for shaping and effectuating the popular will. Judges have no constituencies. They account to the people for their adherence to the rule of law. When judges follow the law, even against the popular will of the time — especially against the popular will of the time — they have done their job.

[15] When judicial accountability is for fidelity to the rule of law, judicial accountability and judicial independence are, if not congruent, aligned. Independence satisfies accountability; accountability rewards independence. But when accountability is measured by whether a judge decides cases the way people like, and what people like is different from what the law is, the pressure is on the judge to surrender independence, and the rule of law, to popular will — to take sides.

Scepticism

[16] Sceptics dismiss judicial professions of adherence to the rule of law as a smokescreen to conceal the truth: that differences in decisions from one judge to another are driven by personal policy choices — conservative, liberal, pro-plaintiff, pro-business, pro-government, pro-criminal defendant and so on. More in the United States than in Scotland, due to our written Constitution and expansive judicial review, judges are often portrayed simply as for or against things like capital punishment, personal injury plaintiffs, abortion, religious freedom or civil rights — and now, with the pandemic, things like restrictions, masks and vaccines. To be sure, judicial decisions differ in ways that cannot be explained by clear differences in the substantive law. Judicial adherence to the rule of law is not robotic. It requires discretion and judgement. No law can cover every situation. There are always gaps, anomalies, interstices. Even simple, direct evidence may look different from different perspectives. One judge’s understanding of the law and the evidence may reasonably differ from another’s. The differences are not only unavoidable; they’re desirable. The rule of law must be broadly based. Judges bring individual backgrounds and experiences to the work of deciding cases. Differing judicial views help assure that the rule of law is not nearsighted and rigid.

[17] Lord Macfadyen is remembered for presiding over the trial of the murder of Jim Brady. In the awful death-grip of Huntington’s Disease, Jim sought to escape his suffering by ending his life, and implored his brother, Peter, to help. Peter resisted at first but at length relented. He pled guilty to murder. Lord Macfadyen, presiding over the trial, famously refused to imprison Peter for his crime. Fiercely criticised in some quarters and praised in others, Lord Macfadyen did as the law allowed — indeed, as the law commanded: he took all the circumstances into account in imposing sentence. Another judge might have reached a different decision, neither of them acting on personal beliefs about euthanasia but both on the evidence and the law.

[18] Sceptics of judicial independence are not only critical; they’re demanding. They argue that deciding on personal preferences rather than the law is not only something judges do; it is something judges should do. Judges, they insist, should take sides — just not the other side. The sceptics’ argument is thus not merely against judicial independence but against the first principle of the rule of law: that judges treat everyone fairly and equally, based on the evidence. It is the same argument autocrats make. Sceptics would make the law an extension of a group’s will with judges forced to tag along.

Importance of judicial independence

[19] Judicial independence is undemocratic. It shields the judiciary from the popular will expressed by the people themselves and by their representatives. Yet, for that very reason, judicial independence is essential to democracy’s proper function. It protects the public from autocrats who would overbear, and minorities’ legal rights from overreaching majorities. It assures a forum for resolving disputes where the people are on an equal footing with their government, the poor with the wealthy, the weak with the strong.

[20] To see the importance of judicial independence in preserving democracy. look around. The Turkish judiciary has long been used to advance political agendas, but President Erdogan has taken the effort to new levels. He has sacked thousands of experienced judges and replaced them with others pledged to do his bidding. Poland has taken the same course, stymied only slightly by more judicial and popular resistance. Much the same can be said of Hungary. Attacks on judicial independence to strengthen the executive are not relegated to Turkey. They are occurring, today, in the European Union.

[21] Judicial independence is important, not just as good policy, but in each individual case. A spouse who must go to court over child custody issues does not want to hear from her lawyer that she will lose because her opponent is the judge’s friend. Nor does a parent whose teenager has been arrested for drug possession, or a cheated consumer, or an honest business or a car accident victim. Attacks on judicial independence are attacks on the rule of law. Yet attacks on judicial independence not only exist; they proliferate, shift, and strengthen.

Threats to Judicial Independence

The other branches

[22] That brings us to the second part of my subject: threats to judicial independence. The most visible threats are external. The easiest examples are those by the executive and legislative branches. The classic US illustration is FDR’s court-packing scheme in 1937. President Franklin Delano Roosevelt was first elected in 1932, with the country mired in the Great Depression. His plan for economic recovery, the New Deal, was publicly popular but fared poorly against legal challenges in the Supreme Court. Frustrated, FDR, after being re-elected in a landslide in 1936, sought to change Supreme Court outcomes by expanding its membership to include Justices whom he could depend on to take his side. His proposal shocked a nation that esteemed the Court as an institution. Congress, though overwhelmingly members of the Democratic Party and solidly aligned with FDR, rejected his efforts. Historians disagree over exactly why FDR’s plan failed, but the Senate Judiciary Committee wrote that it should be ‘so emphatically rejected that its parallel will never again be presented to the free representatives of the free people of America’.

[23] Attacks on judicial independence by US Presidents continue and come from the left and right. President Obama, in his 2010 State of the Union Address to a joint session of Congress, with the Justices of the Supreme Court seated directly in front of him, criticised their decision a few days earlier striking down caps on corporate campaign spending. President Trump, repeatedly critical of court decisions adverse to his programmes, publicly denounced one ruling staying an executive order as coming from ‘an Obama judge’ — a judge appointed by President Obama. Chief Justice Roberts could take no more. ‘We do not have Obama judges or Trump judges’, he said. ‘What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them. That independent judiciary is something we should all be thankful for.’ President Trump shot back: ‘Sorry Chief Justice John Roberts’, he tweeted, ‘but you do indeed have “Obama judges”’. A Democratic Senator, diametrically opposed to President Trump on everything else, agreed with him in part: ‘In spite of my distaste for Trump’s attacks on our judiciary’, he wrote in an op-ed piece, ‘on this one, the facts are with Trump’. Except, he said, the facts showed that Republican judicial appointees in general, and those on the Roberts Court in particular, had ‘no respect for precedent, federalism, originalism or judicial restraint’. The left and right agree: judges are not independent. If they were, they’d take our side.

[24] Prime Minister Johnson was at the United Nations in New York City, meeting with President Trump, when he learned of the Miller II decision. Asked by the press for his response, he said: ‘Let’s be absolutely clear: we respect the judiciary in our country. I disagree profoundly with what they had to say.’ No one could expect him to think otherwise of the merits of the decision, and his reaffirmance of the Court as an institution was to his credit. But since then, Tories have loudly branded the decision ‘a constitutional coup’, while Labour has warned it ‘will oppose attacks on the judiciary and further attempts by PM to restrict scrutiny’ of his actions and policies.

[25] In the United States, with the late Justice Ruth Bader Ginsburg being replaced by Justice Amy Coney Barrett, left-wing critics of Supreme Court decisions have called for increasing the number of Justices, changing their lifetime appointments to a term of years, and making internal processes more transparent, among other so-called ‘reforms’. In response, President Biden has appointed a bipartisan 36-member Presidential Commission to study proposals and report by mid-November, which might or might not stem attacks on the Court on account of its decisions.

[26] An intriguing development here in the UK just last month is the designation of former Foreign Secretary Dominic Raab to hold three offices: Deputy Prime Minister, Justice Secretary and Lord Chancellor. The Lord Chancellor’s ancient role, and now his responsibility by law, is to ensure the efficient functioning and the independence of the courts. Some hope that combining that position with the other two, especially Deputy Prime Minister, will strengthen the judiciary’s voice within the Executive. Others fear that the combination will increase the Executive’s ability to undermine the judiciary. Time will tell, and after Lord Chancellor Raab’s interview last weekend in the Telegraph, the volume of debate has ratcheted up a notch.

[27] Pressure can be directed to judges at all levels. This past summer two MPs were disciplined for trying use their office to influence a judge presiding over the trial of their former colleague for sexual assault. Though the MPs were reprimanded, the episode stands as an example of a threat to judicial independence.

[28] Separation of powers, essential to a functioning democracy, is structured to promote competition among the branches. It does that very well. But like competition on the sports field, inter-branch competition cannot operate to destroy the very enterprise it protects. The fundamental basis for Miller II was that the Prime Minister could not, in the Supreme Court’s words, ‘prevent … Parliament from carrying out its constitutional role’. The judiciary was required to intervene. If in response the government seeks to impede the judiciary’s constitutional role, it threatens the very democracy that the separation of powers and judicial independence protect.

Judicial selection and retention

[29] Judges should have the qualifications for the work, such as intellect, good training, knowledge of and respect for the law, common sense, an even temperament, patience, wisdom, fairness and a touch of good humour. They should, in short, be Lord Macfadyen clones. A good judicial selection process is key to identifying candidates with these qualities. Sceptics of judicial independence, who believe that judges’ personal preferences drive decisions rather than adherence to the rule of law, are vitally interested in judges’ views beyond their qualifications. If judges are to rule in particular ways, they must be chosen for that purpose, and others rejected, regardless of qualifications. Similarly, if judges are not ruling as they should, there must be ways to remove them and replace them with right-sided judges.

[30] Candidates for most UK courts are screened, then appointed usually until mandatory retirement age. Judicial selection and retention in the UK seems to be a fairly principled, quiet matter. Not so in the United States. Federal judges are appointed by the President for life, with the advice and consent of the Senate. In the past 35 years, Senate confirmation hearings of Supreme Court Justice nominees have been national spectacles publicly scrutinising not only the nominee’s qualifications but every aspect of his or her life. The vitriolic process has spread to appeals court and district court nominees.

[31] The states in the United States vary widely in the ways judges are selected. In only three states are judges appointed for life or until mandatory retirement. In most states, judges are selected, retained at the end of their terms, or both in some kind of popular election. Some are non-partisan but, in a few states, candidates must identify with a political party. Texas is one of those states. Most judicial election campaigns are non-controversial. Voters pay little attention. In the end, the process has little effect on judges themselves or on the judiciary. But occasionally, and increasingly, snipers focus on judicial decisions or philosophies. Then the judge and judicial candidate are thrust deeply into the political arena.

[32] Judicial elections may sound awful to you. They are. When judges from other countries visit the Supreme Court of Texas, and I tell them how judges are selected and retained, they are always appalled. All I can say is that voters stubbornly insist on having a say in who their judges are and populists are suspicious of appointment processes. I have been elected to the Texas Supreme Court seven times — more than anyone in history. I have been a judge for more than 40 years. I have always done all I could to oppose the partisan election of judges, to no avail.

[33] In the United States, judicial selection and retention processes present a very real threat to judicial independence by pressuring judges and candidates to take sides on the political issues of the day in order to obtain or retain office.

The media

[34] Another source of external threats to judicial independence is the media. Beyond reporting the criticisms of judicial decisions coming from politicians and others, they add their voice in editorialising on good judges and bad judges. Indeed, as the media has evolved, it is increasingly difficult to distinguish where the reporting ends and the editorialising begins. And media reports on judicial decisions form an echo chamber, so that a smaller criticism may resonate with the public audience. Public distrust of the media blunts their attacks, but over time they reinforce popular prejudices.

[35] As effective as the media’s megaphone is its murmur. The American media has long linked US Supreme Court Justices to particular political perspectives: those who are perceived as more liberal, conservative or centrist. More recently, in reports of even lower federal courts’ decisions, the media has adopted the habit of pointing out which President appointed the judge. So, the story will go, the decision was by Judge So-and-So, appointed by President Trump, or Obama, or Bush, or Clinton, or Reagan. The suggestion is: of course, that explains everything. How else would you expect a Trump judge, or an Obama judge, to decide that case? In other words, judicial independence is a myth.

[36] Evidence to the contrary is mostly disregarded. President Trump’s supporters challenged the validity of the 2020 election in dozens of lawsuits in state and federal courts. All were unsuccessful. In upholding the election in Pennsylvania, a federal appeals court judge wrote: ‘Free, fair elections are the lifeblood of our democracy. Charges of unfairness are serious. But calling an election unfair does not make it so. Charges require specific allegations and then proof. We have neither here.’ The judge was appointed by President Trump just three years before. Whatever his politics, the judge followed the rule of law.

Disinformation campaigns

[37] Attacks on the judiciary from the other branches of government and the media are mostly head on. More insidious attacks are from disinformation campaigns made possible by social media, which has broken the mainstream media’s monopoly on messaging the public. Such cyber campaigns are becoming more prevalent and more effective.

[38] Especially concerning is foreign manipulation of public opinion in the United States, the UK and other democracies, particularly by Russia. Authors of a 2019 report by the US Department of Homeland Security’s Center for Strategic and International Studies explain: ‘Traditionally a democracy’s judiciary is among the most trusted institutions in the government. … The idea of a system built on the rule of law and justice delivered by a fair and impartial judiciary is a critical pillar of democracy and one of its greatest strengths. Erode the public’s belief in that idea, and the pillar begins to crumble.’[6] The report chronicles efforts of Russian propagandist groups to portray American court decisions in the news as products of a broken, corrupt, inept, racist judicial system. Programmes, ads and tweets unrelentingly broadcast that American judges are activist, political and pawns of corporations and elite politicians.

[39] The report includes a clip published by Russia Today following the UK Supreme Court’s Miller I decision,[7] holding that the Prime Minister could not pursue Brexit unilaterally without Parliament. Russia, of course, favoured the UK’s quick exit from the EU. The published clip highlighted the judges’ backgrounds to show that they could not have been impartial in the case.

[40] The social media that facilitates foreign disinformation campaigns grows more sophisticated. Until recently, flaws in audio and video messaging were dead giveaways of fakery. Now, deepfake technology is fast developing to make fraud indistinguishable from the real thing. In the United States, the National Center for State Courts actively monitors disinformation campaigns and advises state courts on responses. Consistent with freedom of speech, responses must be directed at countering false narratives and bolstering confidence in the judiciary. Foreign disinformation campaigns do not intend glancing blows. That they target judicial independence shows its importance in maintaining public trust and confidence in democratic governments.

Access to justice

[41] Disinformation campaigns seize on weaknesses in the justice system to discredit it. Barriers to access are significant. Judges and lawyers speak their own language and follow their own processes, all foreign to most lay people. The lack of means to hire a lawyer is an impediment to access, but so also is an understanding of the system itself. Impaired access to justice does not attack judicial independence directly. It poses the question to the average person: if the justice system is so fundamentally important to preserving our way of life, why can’t I understand it, and why doesn’t it help me when I need it? Without better answers, respect for the rule of law diminishes, and with it respect for judicial independence.

Responses to Threats

The bar’s role

[42] Which brings me to what I came here to say. Not that judges should respond to direct attacks on judicial independence. Judges are especially ill suited for that. Most lack training in public communication, putting them at a disadvantage in trying to respond to political attacks. But more importantly, responding means entering the very fray from which judicial independence excludes them. Once issue is joined, the only distinction among participants is viewpoint, and the only question is which is more persuasive. The important differences in judicial office that justify and necessitate independence from attacks are lost.

[42] If an effective response to direct attacks on judicial independence is to be made, it must come from the bar. Lawyers understand, better than anyone, what is at stake in judicial independence. Lawyers are trained advocates, able to master the debate. And perhaps most importantly, lawyers have a distinct credibility on this particular issue: they’ve both won and lost in the same court. Lawyers would be appalled if that were not so. Unlike those who argue that judges should take their side, lawyers are on both sides. And practising lawyers tend not to be strongly identified with one political position or another, again increasing their credibility in a debate over judicial independence.

[43] Bar associations in the United States are generally accepting of their unique responsibility to defend judicial independence. One group in particular, the American Board of Trial Advocates — ABOTA — has been especially responsive. ABOTA’s members have a common bond: they are civil trial advocates. In other respects, they vary. Some are personal injury plaintiffs’ lawyers, some insurance defence lawyers, some business trial lawyers, some with a few big cases, some with busy dockets. When they are aware of a public attack on a trial judge’s decision, they muster to the defence, whatever the decision. ABOTA is one example of an effective effort to support judicial independence.

Judicial responsibility

[44] What I came here to say is this: the best way to secure judicial independence is for judges to convince the public they deserve it. Not directly. In that arena, as I say, lawyers must help. And not by making better-liked decisions. Judicial independence is to protect against that. Rather, judges must answer to a constitutional responsibility to make the justice system they serve, serve the people. They must step outside dockets and dispute resolution and implement where they can, and advocate for when legislation is needed, improvements and reforms in the operation and structure of the justice system that do not intrude into forbidden policy-making. Part of judicial office is to make courts work better and fairer. When that happens, public trust in the justice system generally supports its essential components, the rule of law and judicial independence.

Here are some suggestions.

Decisions explained

[45] One way is to ensure that decisions are well-explained. Sound, thorough, plain, reasoned judicial reports of decisions are critical in building and sustaining public confidence in the courts. I once asked a legal aid lawyer what one thing would help his clients trust the courts — people who are too poor to pay legal fees and often wary of the legal system. He said: ‘explain the ruling’. ‘That won’t always help’, he added, ‘but even when you lose, you should know why’.

[46] Trial courts are often too busy to explain every decision, but appellate courts must do so. The harder the case, the better the explanation needed. I was struck in reading the opinions in Miller II — first, Lord Carloway’s for the Court of Session, and then Lady Hale’s for the Supreme Court — how strong they were in a case with such intense public interest and on so fast a timetable.

[47] US Supreme Court Justices are sometimes criticised for the sharp tone of dissenting opinions. In my view, the critics have a point. Judges’ insistence that they are not political is undercut by their use of the same rhetoric that characterises partisans. Rhetoric can obscure rationale. Differences in judicial views explained more deftly show that judicial discourse is different.

Civics education

[48] Another way to better the public’s understanding of the justice system is through civics education. FDR’s assault on the US Supreme Court failed in large part because of widespread public trust in the courts. Now, eight decades later, public trust in courts and all institutions is eroding. One reason is the lack of strong civics education in the schools, resulting in people’s lack of appreciation for the history and function of our institutions. US lawyers and bar groups now present civics education programmes in public schools throughout the country.

[49] Judges, too, volunteer time to assist in civics programmes. In one heavily Hispanic part of Texas, the local judge hosts students’ enactment of a mock trial, each taking roles as lawyers, parties, witnesses and jurors. Participation helps students understand the operation of courts better. It has become a national model. Lord Kinclaven has a very similar programme here in Scotland called MiniTrial. The easy-to-follow instructions on the website introduce students to the actual workings of courts. In his 2019 Year-End Report on the Federal Judiciary, Chief Justice Roberts noted that ‘[i]ndividual judges at all levels of the federal courts system … are personally involved in national, regional, and local education programs’. He added that ‘[t]he National Center for State Courts has developed innovative learning materials, including a graphic novel series about how courts work’.

[50] These judicial efforts to promote public trust in courts are doubly beneficial. They better education, but even more important, they demonstrate the nature of the judicial office. Judges are not — in the public’s view — simply off somewhere, doing whatever it is they do. They are visible, public examples, in classrooms and public education forums, of judges’ commitment to the rule of law and, hence, the importance of judicial independence.

[51] When I began my judicial service 40 years ago as what you in Scotland call a sheriff, judges sometimes assisted with educational programmes for lawyers but seldom ventured out into other forums to improve the justice system. Now judges take a much more active role in improving public trust in the judiciary.

Access to justice

[52] I have already mentioned the importance of improving access to justice. Judges can encourage the provision of free legal services to the poor, either by private lawyers representing clients pro bono publico, or by calling for public funding for legal aid lawyers. I know much of this happens in Scotland already. Judges’ insistence that means not be a barrier to justice shows their commitment to the integrity of the rule of law, which, again, is made possible by judicial independence.

[53] Judges have also been instrumental in developing other ways of accessing justice. The Supreme Court of the State of Utah has developed an online dispute resolution system that is easy and inexpensive for simple claims. The court borrowed heavily from work done by courts in British Columbia, Canada. The pandemic has forced us to allow participation in some court proceedings virtually. This makes being ‘in court’ possible for many who could not otherwise afford the time and expense of going in person. Judges’ support for such innovations strengthens public trust.

Problem-solving courts

[54] Criminal courts in both Scotland and the United States have designated drug courts for cases involving drug use and related offenses. Their aim is not simply to impose punishment routinely but to reduce drug use and offending behavior by diverting defendants to treatment. This is not mollycoddling crime but a recognition that diversion can fully satisfy the criminal law while reducing recidivism, improving individual health and productivity, and reducing the burdens of impairment on society — a win-win-win-win situation.

[55] Courts in the United States have expanded on this problem-solving courts model. Many states have veterans courts which use the same process for defendants whose offending behavior can be linked to injuries during military service, such as post-traumatic stress disorder or brain injury. Courts are also creating dockets for defendants charged with opioid abuse due to its rise in recent years. Some states have added homeless courts, teen courts, and tobacco courts, all with the same goals in mind. And more broadly, courts are studying what processes in both civil and criminal courts should be tailored to more effectively address parties with mental health and intellectual disability issues. The National Center for State Courts has created a Mental Health Task Force to assist state courts, and the Supreme Court of Texas has created a Judicial Commission on Mental Health.

[56] Problem-solving courts — courts that not only adjudicate cases but solve problems through institutional innovations — are a tremendous example of what judges can do, by themselves, as part of the judicial work, to promote public confidence and trust in the justice system.

Court outreach

[57] During a large public demonstration in Dallas, Texas, in the summer of 2015, five police officers were killed by a sniper with no connection to the event. The tragedy caused much public tension. A judge told me that in an ordinary car-wreck case she was trying, one of the lawyers asked whether any of the prospective jurors would be inclined to either believe or disbelieve a witness merely because he was a police officer. Almost every hand went up.

[58] The Supreme Court of Texas decided that Texas courts should respond to the worsening situation. Judges do two things very well: convene and listen. Judges’ phone calls are returned and their invitations accepted. And listening is our occupation. So our Court convened a group of several hundred people from around the state — including judges, lawyers, law enforcement, prosecutors, criminal defence, social workers, community activists, teachers and clergy — to spend the day discussing, respectfully and constructively, how the justice system could better address the current situation. We called the event ‘Beyond the Bench: Law, Justice and Communities Summit’. Judges went beyond the bench to better understand the outside realities affecting courts.

[59] The Summit was very successful. We did not solve the world’s problems, or even Texas’s. But participants who disagreed deeply over profoundly important issues took the day to listen to one another. Most importantly, the judiciary listened to all. The view of the justice system improved all around.

Systemic change

[60] The death of George Floyd has sparked outcries in the United States, and I know in Scotland as well, that the justice system is prejudiced racially and in other ways. No one who devotes his life’s energies to judicial service wants to know that the justice system is unfair, or even perceived to be unfair. The judiciary’s response cannot be denial or defence. It must be, again, to listen.

[61] The US National Center for State Courts has created an initiative it calls the Blueprint for Racial Justice. The effort involves more than a dozen Chief Justices of state high courts and scores of others inside and outside the judiciary. The goals are to identify areas in the justice system where fairness, and perceived fairness, can be improved; to determine how best to address issues, including by developing training materials for judges and court personnel that provide concrete, constructive methods to address various situations; and to communicate with policymakers and the public.

[62] The present intent is for the Blueprint project to be ongoing and probably permanent. To earn public trust, the judiciary, like other institutions of government, must have greater transparency and openness.

The press

[63] There is yet another venture judges should consider as part of the effort. That is to meet with the press, not about judicial decisions, but about relations between the judiciary and the Fourth Estate. The US National Center for State Courts sponsors such a meeting each year on a university campus. Discussions are open and, as they say, off the record. The goal is not to resolve differences that are mostly endemic to each other’s operations, but to build understandings. The meeting is always regarded as beneficial by all participants.

Public trust

[64] None of these efforts — encouraging access to justice, community outreach, and response to real and perceived unfairness — has anything to do with promoting judicial independence directly. But all of them strengthen public confidence in the judiciary generally, thereby justifying judicial independence. Debates over judicial independence as a matter of principle may never be settled, but trust in courts as an institution may secure judicial independence as a matter of practice. FDR’s attacks on the judiciary were not deflected by political science arguments about courts and democracies but by a basic trust in courts themselves. To help produce that trust, judges must venture outside courtrooms, not to defend their decisions, but to prove their commitment to the justice system.

[65] Once or twice each year, I am visited in Texas by judicial delegations from foreign countries: Europe, Africa, Southeast Asia and elsewhere. One question is always asked: what happens when a judge’s ruling is unpopular or goes against the government? The judge may be criticised, I say, but generally the legal profession and the people believe in and defend an independent judiciary. I was explaining this to a delegation from Iraq when I noticed one of the judges, a woman, sitting quietly, her eyes filling with tears. I was afraid I had said something to hurt her, and paused. Her colleague interjected. ‘It’s not you’, he told me. ‘It is a hard issue for her. While she has been on this trip, her father, also a judge in her hometown, was killed because of an unpopular ruling.’

[66] That alone should prove, once and for all, the importance of judicial independence to the rule of law. But the prosecution never rests, and so neither can the defence. Public discourse today is intense, to say the least. Verbal brawling long ago abandoned Marquess of Queensberry rules. Judicial independence cannot be a casualty. The legal profession must continue to defend it, and judges must continue to prove they deserve it.

*****

[1].  Sir David Edward, ‘What Are Judges For?’ (4 March 2010). Incidentally, I think Sir Edward was part of the European Court of Justice’s first trip to the United States in 2000, which included a visit with the Supreme Court of Texas in Austin. So, I believe he and I made each other’s acquaintance years ago.

[2] R (Miller) v The Prime Minister and Cherry v. Advocate General for Scotland (2019) UKSC 41 (24 Sept. 2019).

[3] (2019) CSIH 49 (11 Sept. 2019).

[4] ‘Dominic Raab: I’ll overhaul the Human Rights Act to stop Strasbourg dictating to us,’ The Telegraph (16 Oct. 2021).

[5]. Leviticus 19:15 (English Standard Version).

[6] Suzanne Spaulding, Devi Nair, & Arthur Nelson, Russia’s Attacks on Democratic Justice Systems, available at csis.org/features/russias-attacks-democratic justice systems. See also Suzanne Spaulding, Devi Nari, & Arthur Nelson, Beyond the Ballot: How the Kremlin Works to Undermine the U.S. Justice System, www.csis.org/analysis/beyond-ballot-how-kremlin-works-undermine-us-justice-system (accessed 26 Oct 2021)

[7] R (Miller) v Secretary of State for Exiting the European Union, (2017) UKSC 5 (24 Jan. 2017).