Larry E. Parrish
Copyright
January 17, 2005
In the United States, the people are supposed to judge the judges' routine performance to insure the law remains supreme. Courts, not judges and justices, are supreme.
In explaining why the Supreme Court was no threat to the Constitution, Alexander Hamilton observed that the court had neither a will nor power. If, in 2005, United States judges were asked whether they serve with will and power when sitting as a court, probably 95% or more would respond, yes.
Excluding an exceptional judge, the thought that he/she had neither a will nor power would never have crossed the mind of the judge. Therein lies, perhaps, the major social problem we now face as a Nation. This problem did not happen overnight nor did it happen by mistake. It happened because the people neglected their citizenship responsibility.
There is an Official Comment accompanying Rule 8.2 of the Rules of Professional Conduct for lawyers that states that lawyers are encouraged "to responsibly speak out... to promote needed improvements in the judicial system." It is to this end that I write.
Which judge is randomly assigned a litigant's case, in our present system, can be the all-determinative factor in how the litigant's case is going to be decided. This is justice by lottery. If the President and United States Senators did not believe this to be so, do you think the fiasco we now have over Senate confirmations of judicial appointees would be happening? Fix the system, and what is happening in the Senate should not recur.
The problem is an age-old tension that is at a breaking point, if we do not soon relieve some of the pressure. The supremacy of law and an independent judiciary are cornerstones without which our entire system will collapse. No thinking person questions this.
An independent judiciary that is not held in check is as great a threat to the collapse of our system as could be imagined. How do we hold in check a thing that functions "independently?"
In On The Rule of Law (Cambridge University Press 2004), Brian Z. Tamanaha makes note (page 8) that, from the origin of classical courts, the role of courts was to guard the law but "not to declare the law as they pleased." He goes on to quote (page 9) Judith N. Shklar where she stated, in "Political Theory and the Rule of Law," as follows:
In Aristotle's account the single most important condition for the Rule of Law is the character one must impute to those who make legal judgments . . .(ellipsis in original). It is part of such a character to reason syllogistically and to do so his passions must be silent.
Tomanaha observes (page 37) the obvious by his statement that "democratically established laws may be eviscerated ... by not being followed."
I will start with the presupposition that the problem is real and serious.
Judicial Canon 3B(2), beyond peradventure, is an expression that forces judges to adjudicate undeviatingly from a rule of law base in every case and every time the judge rules. There is no exception to this mandate, and the failure of a judge, even once, to deviate from Canon 3B(2) ought to result in the judge being punished. Hardly anybody could disagree with this statement, if Canon 3B(2) is presupposed to say what it means and mean what is says. Why does this punishment not occur?
Hayek, Law, Legislation and Liberty, vol. 1 p. 89 provides a succinct rule of law definition of "justice" as follows:
Justice is thus emphatically not a balancing of particular interests at stake in a concrete case, or even of the interests of determinable classes of persons, nor does it aim at bringing about a particular state of affairs which is regarded as just.
By slight modification of Hayek's definition, a succinct anti-rule of law definition of "justice" is clear as follows:
Justice is thus emphatically a balancing of the particular interests at stake in a concrete case, or even of the interests of determinable classes of persons, and aims at bringing about a particular state of affairs which is regarded as just.
Result-oriented adjudication is decidedly anti-rule of law. It is the outcome when a judge, in a given case, conforms the law to his/her feelings about what the law ought to be instead of delivering a ruling according to what the law actually is. The result is a ruling that is the predilection of the judge rather than the law, coldly applied to the facts, oblivious to what consequence the law dictates. Result-oriented adjudication makes a mockery of the all-important axiom: "A Nation of laws, not men."
Smart judges do it. Dumb judges do it. Christian judges do it. Atheist judges do it. Trial judges do it. Appeals judges do it. State judges do it. Federal judges do it. Democrat judges do it. Republican judges do it. Conservative judges do it. Liberal judges do it. Libertarian judges are the very worst. Though few judges would openly admit adjudicating from a result-oriented basis, every time a judge does it, the judge knows; some judges are better than others at covering up with legal mumbo jumbo.
No matter who the judge is or why the judge does it, judges who make result-oriented decisions (even once) are destroying what we have all grown up thinking "justice" is and what we have a right to expect.
Judicial Canon 3B(2) states: "A judge shall be faithful to the law and maintain professional competence in it." All judges are bound by this rule 100% of the time; yes, even the Justices on the United States Supreme Court. The Canons make violation of this mandate cause to discipline the violating judge.
In times past, fear that a judge might give lip-service only to ignore altogether the law in order to achieve a result that strict adherence to the law would not yield was held in check by the ethical constraint.
We are all familiar with the statue Justice. The most important part of Justice is that she is blindfolded. For the checks and balances of our government to work, her blindfold never should be loosened, much less come off. Justice must remain tightly blindfolded.
Judicial sympathy must never play a part in the resolution of any litigated dispute. Judges who practice result-oriented justice should be sanctioned for deviating from the Canon 3B(2) severely enough to deter the offending judge and others who might be so inclined.
Judges, without exception, are forced by the Canons to apply the law to the facts, even if the judges "feel" that the law is unspeakably bad and will yield a result that is "unfair," even devastating, to the litigants or to society.
But, Canon 3B(2), in practical effect, is window-dressing, i.e., a lot of form over very little substance. The control of Canon 3B(2) on what happens, from day-to-day and case-by-case in trial and appellate courtrooms, is nil. If a judge decides not to follow the punctilio of the law, he/she reasonably can expect such a violation of this "binding obligation" will result in zero "disciplinary action."
From my 37 years practicing law, under our judicial system as it presently is being administered, I have never known of disciplinary action for a judge simply not following the law. Unless there are substantial changes, I never expect I will see this.
The teaching from the United States Supreme Court, during the tenure of Chief Justice Warren, is that, if a judge feels applying preexisting law to the facts the judge has before him or her will result in a ruling that is "bad," the judge is justified in "interpreting" or "construing" the facts and/or the law or using the damnable card of judicial discretion to make sure the outcome is what that judge "feels" is the "right" outcome in that case. Though there is a new Supreme Court, the Warren Court's legacy has been passed on and, with the help of law schools, dominates the administration of justice, especially in trial and intermediate appellate courts.
On January 13, 2005, two Justices on the United States Supreme Court, Justice Scalia and Justice Breyer, jointly addressed law students at American University's Washington Law School. This was a robust discussion about what the legitimate decision-making role of a judge is. While Justice Scalia and Justice Breyer expressed many divergent views, the discussion ended with Justice Scalia stating that he was in agreement with the concluding statement of Justice Breyer. The agreement is remarkable.
Justice Breyer eloquently explained that judges in places with a history of rule by monarchy or other strong leader-oriented countries seem befuddled if the United States public reacts with indignation when confronted with a court ruling or other mandate from a higher authority. In the countries to which he referred, the foreign judges expect the public to accept such edicts from on high with a sense of obligation or, at least, with a resignation to obey. For the most part, this is what happens. Why is this not to be expected in the United States?
Justice Breyer explained why. In the leader-oriented countries, liberty historically has resided with the king, dictator or oligarchy and has been dispensed to the people and withdrawn from the people by the will of the higher authority. People in these countries never developed a mindset that the people possessed the liberty to be dispensed and withdrawn by the people to the rulers. In the United States, the judges have only so much liberty as has been dispensed to the judges by the people.
Thus, when a judge in the United States acts as if he or she is a dispenser and/or withholder of liberty from the person before the judge for a ruling, the people have a legitimate right to cry out against the judge and to demand that the judge be severely sanctioned, if not removed from office.
In the United States, everybody expects judges to conduct themselves in light of the reality that there is no power higher than the people. A judge is no stronger than the legitimacy of the judge's proclamations. Result-oriented proclamations are illegitimate. An illegitimate proclamation should render the judge who made it illegitimate, i.e., disqualified to remain a judge.
I remember only once (25 years ago) hearing a judge say that the ruling he/she was making was going to produce a tragic result, but that he/she was powerless to avert the tragedy because the law left the judge no alternative. I read opinions of judges from the past where this was said; I cite these cases from the past to modern day judges and, most of the time, get a "why don't you move on to something I'm interested in" response.
The judge is a government official called on to pass judgment on conflicting claims of citizens. The judge sits as the servant of the litigants and has no power to lord over the litigants. The judge is the servant of all litigants equally and owes a duty to each litigant to judge without bias of any kind, toward persons or philosophies, save only that the law shall rule without exception. If judges focused on the reality that they are humble servants, rather than masters who rule, our justice system would work as it is designed to work.
Judges are messengers only. Citizens take facts to judges and ask the judges to deliver the law's message to the citizens in light of the presented facts. Judges are not asked to give out the judge's feelings about whether the law's message is a "good" or a "bad" message nor are judges to protect citizens from the consequence of what results when the law's message - not the judge's feeling - is converted in to practical reality in a citizen's life.
In my opinion, the worst part of United States' history, over the past 50 years, is that judges, even at the trial and intermediate appeal level, have thrust themselves into legislative and policymaking functions on an ad hoc and case-by-case basis; if a judge believes it would be a "bad" result in a given case to enforce or apply the rule of law, the judge bypasses the law to insure or to create "good" policy in that case. Before, our system officially barred judges from this arena. In years past, a breach by a judge of the line segregating the judiciary from legislating and policymaking, by the a way a case was decided, was one that judges dare not cross, especially trial judges and intermediate appellate judges; now, judges, with abandon, cross that line; many of them feel good about doing it.
There has been ushered in a travesty in how far too many judges carry out the sacred role of the office they hold. Most judges, lawyers, students and teachers currently at the bench and bar have never known a judiciary functioning as it was designed to function; so, when one now suggests that what has happened is the ruination of the Nation's judicial system, many hearers glaze over with that "what in the world are you talking about" look.
I am one who believes that ruination has occurred because there is no consistency, from courtroom to courtroom or even from day to day in some courtrooms, on which litigants can rely, sight unseen, to be absolutely certain that what rulings are made will not be generated by the judge's desire to achieve a result to the judge's liking..
The following observation from Jean Hampton in "Democracy and the Rule of Law," quoted in The Rule of Law, Shapiro (New York, NYU Press 1994) page 16 bears restatement here as follows:
A rule is inherently powerless; it only takes on life if it is interpreted, applied, and enforced by individuals. That set of human beings that has final say over what the rules are, how they should be applied, and how they should be enforced has ultimate control over what these rules actually are. So human beings control the rules, and not vice versa.
To make certain that human beings (judges), in practical effect, never replace the rules (laws) by becoming rulers has to remain our highest priority. Alexander Hamilton understood how very important this was when he described our independent judiciary as deliberately created to be our "weakest" branch with no army and no wealth at its disposal and, therefore, no threat. Federalist Papers, No. 51, pages 320-325.
What then is a judge to be in "a government of laws, and not of men," as the Supreme Court wrote in Marbury v. Madison, 1 U.S.137, 177 (1803)? Nothing but a mouthpiece by which the law (not the judge) speaks. If any judge ever speaks personally, the judge no longer is filling the role of a judge.
There are serving throughout the country men and women who are the epitome of what a good judge should be; there are others serving who are at the opposite extreme, and most fall somewhere in-between. But, today, rare is the judge who, given what the judge considers the "right" circumstances, would fear making a result-oriented decision because to do so would subject the judge to severe negative consequences.
This needs to change. We do not have the freedom to say: "There's no way." We often say: "Crime with no punishment is just a suggestion." Judicial Canon 3B(2) cannot remain the suggestion it is today; the teeth of "punishment" (sanction) must be added.
I respect judges and the office they hold. Judges are as much victims of the broken down system as the rest of us. We hand them a teacup with which to empty the ocean.
Maybe, a majority of the time most of the judges are comfortable enough with the law that there is no significant enough conflict between what the judges feel is "right" and the law to cause a result that deviates from the law. Sometimes, like a blind hog finding an acorn, the common sense judges find the law. But, if result-oriented decision-making occurs one time in ten or nine times in ten is not the issue.
We have to know what is broken before we can fix it. My mentor used to say that, sometimes, you use something that is broken for so long that you forget that it is broken. He would mock by quoting those who said: "It's just like it's always been. Why would you expect it to be any different?"
The Legal Realists and The Critical Legal Studies Movement, for years, have leveled a frontal assault openly intended to destroy rule of law. One of the arguments made by these detractors against rule of law is that it does not guarantee a pre-determined outcome; therefore, a judge who rules to produce an outcome to accomplish "justice" is an appropriate way to adjudicate. The fallacy of this anti-rule of law argument has been documented enough that the argument is now seldom heard.
A statement criticizing the indeterminancy argument of anti-rule of law advocates serves a purpose here. Tamanaha p. 88:
It is impossible to prevent a determined bad faith judge from manipulating the rules to achieve a desired outcome. All legal systems rely upon judges possessing the integrity not to exploit the latent indeterminacy in language and legal rules. Judges must be committed to fidelity to the law and must have as their primary interpretive orientation to seek out the correct understanding of the legal rules. Unless corruption or ineptitude pervades the judiciary, the rogue judge will be checked (though not in every instance) by the presence of other judges, either sitting on the same panel or at high levels of appellate review.
Today, the suggested checks are just not working. The judges are not judging the judges. A court of appeals, now, might reverse a result-oriented decision of a trial court, not because the trial court departed from the rule of law, but because the court of appeals wants a different result. Rule of law gets lost in the shuffle.
To replace the license the judiciary takes with what is supposed to be a strictly precedent-controlled system will displace vested interests that thrive on the status quo.
The pertinent beliefs of Oliver Wendell Holmes were brought to Teddy Roosevelt's attention when Henry Cabot Lodge suggested that Holmes would make a good Justice. This is recorded as follows in Edmund Morris' Theodore Rex (Random House 2001) on page 130:
Oliver Wendell Holmes, Jr., Justice of the Massachusetts Supreme Court, was not well-known outside legal circles,... [t]he most original intelligence in American jurisprudence.
***
In his world there was neither absolute good nor absolute evil- only shifting standards of positive and negative behavior, determined by the majority and subject to constant change. Morality was not defined by God; it was the code a given generation of men wanted to live by. Truth was 'what I can't help believing.' Yesterday's absolutes must give way to 'the felt necessities of the time.'
This signaled a serious breach in the rule of law. A hundred years later reconstruction of what this thinking has destroyed about the rule of law is the issue.
The philosophical underpinnings of result-oriented adjudication, in modern times, date to the influence of Oliver Wendell Holmes, especially after he became a Justice on the United States Supreme Court in 1902. He advocated a much more precedent-free judicial system; the blindfold of Justice, according to his teaching, should be worn loosely, if not discarded altogether. This caught on as the mantra of law professors and, with rare exception, is taught as sine qua non doctrine in law schools today.
The philosophy became more than an academic aberration when, under Chief Justice Warren, with the avid support of even more ardent advocates like Justice William O. Douglas, Justice William Brennan, Jr. and Justice Hugo Black, the United States Supreme Court operated as if this philosophy was legitimate. Others have followed (e.g., Justice Harry Blackmun) who believed and/or believe today that in the legitimacy of Holmes¿ approach to justice-seeking.
For five decades or more law schools have flooded the bench and the bar with lawyers and judges who are just now beginning to be aware of serious doubts about the legitimacy of what they have for so long accepted as dogma; this is still strange talk to the vast majority of persons who populate the bench and the bar and more so to the vast majority of law professors who teach those who are members of the judiciary and who make up the bar.
The members of the general public never bought into the "dogma." To the citizens on the street, the judicial system is still as they learned it is supposed to be, i.e., the place to go to have a completely predeliction-free judge who is all-knowledgeable concerning the law make previously existing law the sole determinant of the outcome of the dispute that forced them to court.
The bench/bar establishment that advocates Justice not wear her blindfold has a philosophically-based vested interest in preserving what they have fought long and hard to make the status quo.
There is another segment of the bench/bar that will rise up to fight for the status quo for reasons unconcerned with philosophy. These are the persons who have a livelihood entrenched vested interest in the status quo.
Doing justice the right way is hard work and requires a level of intellectual, emotional and physical devotion on the part of non-philosophically oriented lawyers and judges significantly different from what is required to be successful under a system of result-oriented judicial decision-making. The mark of a good entrepreneur is not to change the system, but to learn the system well and figure out how to maximize earnings or, if wealth is not the goal, to settle into a comfortable existence going with the flow.
Many lawyers have found a way to make much money quite "legitimately" in the system functioning as it is and would resist a change that causes it to function as it should.
The change that needs to be made is something equivalent to going into a marketplace where loop-knit cotton throw-rugs have been profitably traded for decades and announcing that the loop-knit cotton throw-rugs can no longer be traded. From now on, the announcer says, only tightly knit fine Persian rugs will be traded. Have no doubt, the cotton throw-rug trader will fight hard for the booth from which he has made his fortune.
The next vested interest group that will fight to preserve the status quo is constituted by taxpayers. The cost of transition might be substantial.
It will be difficult to bring many members of the public to an understanding that the greatest waste of resources imaginable is a justice system that is so under-funded that the whole notion of justice suffers. Cheap "justice" cheapens the whole notion of justice. When true justice melts away, all of the wheels and cogs of society begin to fly off, and the costs to society are many, many times the cost of a properly functioning justice system. A properly functioning justice system is relatively inexpensive; the cost of repairing a broken system will be relatively expensive, and once repaired the expense to operate a properly repaired justice system will be more expensive than the cost to operate the broken system, if the cost of the collateral damage done by a broken system is not accounted for. This is a difficult connection to make for citizens whose lives, to them, seem to be so removed from the justice system.
While members of the public seem to know something is not right, the wisdom of the precedent-controlling approach to adjudication does not stand out. The knee-jerk reaction of an ordinary citizen largely ignorant of how the justice system works or is supposed to work is that judges should just do what is "right." From this perspective, following the law or not following the law is a non-issue as long as it comes out "right."
It is rampant ignorance the general public has of our system of justice that has allowed result-oriented decisions among judges to become equally rampant. The fault rests squarely on the shoulders of the ordinary citizens who are just now beginning to point the finger of blame toward the judges. It really does not matter who is at fault. The problem is destroying our "Nation of laws, not men."
In "A Man For All Seasons," Robert Bolt's play, the most famous passage captures what is so dreadful about result-oriented judicial decisions. It portrays Sir Thomas More illustrating to his hot-headed nephew, Roper, why ignoring the law in order to achieve a laudable goal is self-destructive. The pertinent script reads:
Wife: While you talk he's [the traitor] gone!
More: And go he should, if he were the Devil himself, until he broke the law!
Roper: So, now you give the Devil the benefit of law!
More: Yes! What would you do? Cut a great road through the law to get after the Devil?
Roper: Yes, I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat?
This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down (and you're just the man to do it!), do you really think you could stand upright in the winds that would blow then?
Yes, I'd give the Devil benefit of law, for my own safety's sake!
The problem today goes most unnoticed and is most damaging in the mundane civil lawsuits and criminal prosecutions where ordinary citizens and businesses go to court without any fanfare (but, often, with cases of life-changing importance to them) thinking that nothing but the cold hard facts and the cold hard law will control the outcome. Then, they come out finding that the cold hard facts and cold hard law is not what determined the outcome. This tends to poison the winner even more than the loser because the winner has learned that beating the system is possible and can be profitable.
Result-oriented decisions, if discussed at all, get most play when speaking of the United States Supreme Court, but where the problem hurts this country the most is in the trial courts and the intermediate courts of appeals where the result-oriented hammer falls countless times a day on one litigant at a time, without a word uttered in condemnation.
Result-oriented decision-making by a smart judge is like the perfect crime; it goes undetected. If need be, a judge can smear a little legalese over what the judge knows is his or her result-oriented decision and make it look, especially to the general public, like a decision the law required or, if not, just an innocent "mistake."
Very rarely will you ever see in print criticism of a judge, in a case without fanfare, because the judge engineered an outcome consistent with the judge's libertarian or conservative or liberal philosophy of oughtness, wrapped in an opinion that, to the uninformed, appears to be what is dictated by the law, even though the result misses the law's mark by a mile.
But, few are qualified to figure out what has happened, and those who are qualified are never going to take the time to do it. Thus, result-oriented decision-making by a smart judge is like the perfect crime; it goes undetected. Appeals are not effective to remedy the problem because there is no sanction imposed against a judge for merely being reversed and because appellate judges are as prone as trial judges to engage in result-oriented decision-making.
Only the spurned litigant knows, sometimes, and he is dismissed as spewing sour grapes. Appeals are not effective to remedy the problem because there is no sanction imposed against a judge for merely being reversed and because appellate judges are as prone as trial judges to engage in result-oriented decision-making.
Conservatives rail against liberal judges who refuse strictly to construe the law. As an avid conservative well to the right of center, you can take my word that conservative judges often are the most abusive wielders of the "power" they do not have. These conservatives make some of their liberal counterparts (who do not even claim to be strict constructionists) look like strict constructionists.
Being conservative and being a strict constructionist is not the same thing. Most ordinary conservative citizens (some of whom might be Presidents) are terribly confused about this.
The executive branches would do well to re-examine how and to what extent law enforcement resources should be allocated to enforcing, without review or question, what judges order. Are there illegitimate orders of courts the sheriffs should refuse to enforce? Otherwise, the reminder of Hamilton that the independent judiciary is designed to be weak, e.g., no army (sheriff), no wealth, has no substance.
We must always keep foremost in mind that judges are not kings. It really makes no difference if judges are not de jure kings if the executive branch law enforcement establishment bows and scrapes, without review or question, when judges speak. This makes judges de facto kings. Our judiciary is more than merely independent, if it has law enforcers (an army) effectively (even if not officially) under its control. The independent judiciary announces what preexisting law is; the independent judiciary never ever, officially or pragmatically, enforces the law.
Many judges and potential judges, since it is the popular thing to say, would describe themselves as strict constructionists; unfortunately, many tend to say one thing and do another; you never really know until after a person is handed the gavel; then, the only ones who know are the unfortunate litigants who, one litigant at a time, find out that the law in the law books does not necessarily control in the courtroom.
Whether a person is liberal, conservative, libertarian, evangelical Christian, Jewish, Muslim, Atheist, red, yellow, black or white, male or female, young or old, poverty-stricken or blueblood should make no difference in determining whether he/she is able to excel as a judge.
A good judge is one who, with machine-like precision and slide-rule efficiency, declares law, good law and bad law alike, to good facts and bad facts alike, presented by good people and bad people alike, for all intents and purposes, unmindful as to the identity of the parties to the suit and, most of all, oblivious to how the outcome affects any party or the public at large.
Perfection for a judge would be to achieve a level of blindfoldedness that releases the judge coldly to find the law and apply it to coldly found facts, as nearly like a philosophy-free and predilection-free machine as humanly possible.
It is impossible for a judge perfectly to achieve machine-like objectivity, but this should not lead a judge to the conclusion that, therefore, it is unnecessary to spend every minute sweating bullets trying to achieve objectivity. This faulty reasoning frees judges to be result-oriented with a contrived clear conscience.
Make no mistake, being a humble judge who acts like a servant instead of a master is very hard work consuming long hours and a concentration that occupies a good judge's thoughts almost ceaselessly. The job requires uncommon intellect, devotion, skill and hard-to-come-by expertise in searching out the exact law that preexists to apply to the precisely found facts. Inductive and deductive reasoning and other tools of logic need to come easy for judges.
Being "dead to self" would be an apt description of a really good judge. This is not a job for which many people qualify or for which many among the qualified apply.
How does one respond to a judge who justifies his or her approach to adjudication by: "I just use common sense, and, that way, I usually get it right?" The law, rightly applied, often leads good judges to a place common sense tells them is the "wrong" place, even though, because it is the place the law leads, common sense aside, it is the "right" place.
A good judge must be able to distinguish between the law and his/her common sense and never, for any reason, be swayed by common sense, as he/she perceives common sense, to "construe," "interpret" or ignore the law into pragmatic nonexistence.
Unfortunately, judges who are prone to a common sense approach unwittingly replace the law because they either assume that their common sense is consistent with the law or, if it is not, it ought to be. These "I just use common sense" judges too often are judges who could not find the law if they looked for it. The "common sense" talk can be a cover-up for incompetence. These are among the most dangerous result-oriented judges.
A good judge must have an unflappable temperament, even-keeled. A good judge must be an excellent and always-learning student. It would be hard for a good judge not to be considered, relative to the rest of society, obsessively studious.
Judges have slipped beyond their proper bounds in times past. For instance, long ago, judges created for themselves the Thirteenth Juror Rule. If a jury decides a case differently from how that judge feels the jury ought to have decided the case, that judge, on that day, need only declare himself/herself to be the Thirteenth Juror, throw out the jury's verdict, then, render a verdict the opposite of the jury's verdict. Damn the jury! So much for the rule of law!
If you read the justification judges give for the Thirteenth Juror Rule, elitism is evident. Except that the public does not know, why the electorate and the legislature tolerate this judge-made rule is beyond me.
Most citizens, rightly, are irate when they find out judges have made such a rule, especially jurors whose verdict was thrown out. Judges sometime use this rule to reduce or increase the amount a jury awards, as if the judges have omniscience about "right" and "wrong" that lowly jurors could never possess.
Our system makes judges separate from juries for a very important purpose. But some judges act like they do not understand why this must be, result-prone judges especially have a problem with this separation.
Fixing a constitutional law that dictates "unjust" but not unconstitutional results or that is "against" the public interest but not unconstitutional is exclusively the realm of the legislature and the electorate. Most things thought by people (including judges) to be "unjust" or "against" the public interest are not unconstitutional.
Rule of law is often thought to have broken down because crime is running amuck and because dishonesty in the marketplace is out of control. The most injurious breakdown, h
