Why does the public know so little about how courts function? For starters, our professional culture gets in the way when it comes to responding to calls for courts to be more transparent. Asked to speak at colleges, law schools, or civic groups, judges tend to stick to topics involving the rule of law and general civics lessons. Those subjects are safe harbors for purposes of complying with professional codes of conduct, but they say very little about the efforts courts have made to ensure that cases are adjudicated fairly, as promptly as possible, and according to the rule of law. As a group, judges have a habit of being cautious when speaking or writing about how courts work, and this limitation is largely self-imposed. Codes of conduct do not prevent judges from explaining the nuts and bolts of our professional duties and ethical boundaries, and judges need not be concerned that broaching these subjects will trap us in conversations in which we are forced to demur rather than respond to questions. The public understands that courts are different and that there are some things judges cannot talk about.
Without stretching our ethical boundaries, there are steps we can take to demystify courts and reinforce the public’s confidence in the judiciary. And it is important that judges are part of the solution. If the polls are correct that there has been a decline in the public’s trust in the courts, it is more important than ever that judges engage in public outreach. That should include explaining how courts work and listening to what the public has to say about how the judiciary can improve.
We Need to Tell the Public How Courts Work
The public’s perception of the judiciary would be boosted by greater familiarity with the rules and practices that courts routinely employ, including those used to screen for conflicts and randomly assign cases to judicial officers. The public would benefit from knowing that the vast majority of the decisions made by multijudge appellate courts are unanimous and that scores of senior federal judges continue to serve, on an entirely voluntary basis, years after they have earned their full pensions and are eligible for retirement. Many retired state court judges also continue to sit pro tem when called on, mediate cases, and help mentor and train new judges.
The U.S. Court of Appeals for the Ninth Circuit, where I currently serve, has benefited tremendously from professional staff who have collaborated over the course of many years to develop and refine the case-processing systems we use today, and the same was true of the Alaska Court System, where I spent the first several years of my career. The intricacies of those courts’ systems are not important for the purposes of this article. The salient point is that although judges and professional staff devote a great deal of care to developing and fine-tuning processes to ensure that cases are resolved impartially and according to the rule of law, many courts miss opportunities to make their systems more transparent because the rules and policies by which they operate appear only in internal policy manuals used by judges and court staff. More can be done to make court rules and policies visible to the public, including prominently posting links to them on court websites.
Granted, the ins and outs of rules for avoiding conflicts, assigning cases, and investigating allegations of judicial misconduct may not make for scintillating reading, and most people will not take time to review them. But some people will; and it is likely that they will do so after a controversy has arisen, which is precisely when it is most important that the rules are readily available.
If a court system’s operations are a black box, it is easy for laypeople to become distrustful. We should not assume that the public knows that multijudge courts assign cases on a random basis rather than hand-picking the assigned judges. Nor should we assume the public knows that when a judge is required to recuse, the case is randomly reassigned rather than being steered by the exiting judge to the next judicial officer. Websites, lobby displays, and inserts in voters’ pamphlets also can include visual depictions explaining the applicable judicial selection and retention processes, opportunities for public input into judicial selection or retention, diagrams illustrating various levels of courts and judicial review, and timelines showing the stages in the life of cases litigated in trial and appellate courts. Demonstrating that courts consistently adhere to preestablished rules and practices and making the processes visible to the public speaks volumes to those seeking assurance that courts are dedicated to adjudicating cases according to the rule of law.
We Benefit from Feedback
In some ways, learning how to be a good judge is like learning anything else: After formal training, we learn by doing and by getting feedback about how well we have done. Though judges would benefit from feedback just like people working in any other occupation, ethical restraints combined with a professional culture that isolates and separates judges from their former colleagues make it difficult for judges, especially new judges, to get a “clean read” on how well they are doing. This is not to suggest that judges should seek public reaction on the merits or popularity of their decisions. However, judges can benefit from objective indications about whether they are mastering the skills that are essential to doing their jobs well: Are they communicating clearly, listening carefully, and setting a tone in the courtroom that conveys mutual respect and professionalism? Are they drafting decisions that litigants and members of the press can understand? If appellate briefs or press accounts misunderstand a ruling, that’s a signal that the ruling was unclear.
Some rookie mistakes have a lot more to do with situational awareness and logistics than understanding and applying legal doctrines. For example, new judges can be the last to know if their staff is making administrative errors with calendaring and scheduling orders, if there is a delay between the time an order is executed and the time it appears on the docket, or if prospective jurors are unnecessarily kept waiting because chambers’ timing is out of sync with the jury clerk’s schedule. These may seem like minor missteps, but these sorts of mistakes and inefficiencies can leave the impression that courts are unconcerned with how well they serve the public. And though customer complaints about these types of logistical errors can be dismissed as unwelcome, conscientious judges and court administrators who want to do the best job possible will recognize this feedback as invaluable. The important point is that courts will not receive this type of feedback unless they provide opportunities for members of the public and bar to give it.
I was lucky because I began my judicial career as a state court judge in Alaska, a state with a judicial selection process modeled after the Missouri Plan and a strong commitment to providing the public with comprehensive assessments of judges’ performance prior to retention elections. In addition to interviewing and screening judicial applicants to nominate for consideration and appointment by Alaska’s governor, the Judicial Council evaluates judges prior to retention elections after broadly canvassing lawyers, other judges, and members of the public. The Judicial Council’s survey asks respondents to rate each judge’s performance in several categories on a scale of 1–5: legal ability, impartiality/fairness, integrity, judicial temperament, diligence, and administrative skills. The Judicial Council’s survey also allows respondents the open-ended opportunity to provide additional comments on a confidential basis. A third-party contractor tabulates the survey results and strips the comments of identifying information, so the responses remain truly anonymous. After all the data are compiled, the Judicial Council prepares an evaluation that appears on its website and in the Lieutenant Governor’s Official Election pamphlet. It includes a page devoted to each judicial officer standing for retention that summarizes the nonconfidential data collected during the evaluation process and the Judicial Council’s recommendation that the judge should be retained, or not retained, for another term. This type of review has not always been confined to state court judges. In 1992 and 1997, the Alaska Judicial Council included federal judges in its bar survey at the judges’ request.
When I joined the trial court, I received lots of advice from more experienced colleagues. Most of it was helpful; some of it was contradictory; and other bits made sense only after I had served for several years. My new colleagues’ advice ranged from the practical (“You will be sitting down far too much, so make it a habit to always take the stairs.”), to the aspirational (“Never lose your patience.”), to the much more realistic (“When you do lose your patience, take a break before you say anything.”). Though I appreciated all the advice I received from other judges, I will be forever grateful that the Judicial Council happened to launch one of its periodic surveys shortly after my investiture in 2002. It was only through a comment returned in the survey that I learned about an acoustical oddity of the courtroom where I was assigned: Whispered sidebar conversations could be heard in the back row of the gallery unless a sound-canceling device was used. I never learned who was responsible for including that comment in the survey responses, but it clearly came from a member of the public or bar who acted to preserve the integrity of the court’s process, and I have often reflected on how fortunate I was to receive that comment so early in my tenure.
The Ninth Circuit does not conduct surveys, but it does receive invaluable practical feedback from lawyer representatives who participate in various committees and programs throughout the year and attend the Circuit’s annual conference. At least one conference program is presented solely by the lawyer representatives, and the conference provides multiple opportunities for small-group discussions in which judges can receive input from the lawyers and hear their ideas about how the court can do better. In recent years, the lawyer representatives’ presentation explained the bar’s preference for receiving focus orders in advance of certain types of arguments, and the lawyer representatives surveyed their ranks to compile a top ten list of things they wish judges knew—or that they suspect judges knew when practicing but apparently have since forgotten. There is no substitute for listening to what the bar has to say, and while we certainly do not discuss cases before the court or even issues raised in cases that have come before the court, we learn from the lawyer representatives every time we meet with them.
Judges Can Help Each Other
Judges are subject to the same health challenges as other people, but we can be slower to recognize when chronic conditions creep up over time and begin to have an impact on job performance. Left unaddressed, health issues that impact performance on the bench can undermine the public’s confidence and trust in the judiciary.
Several factors can cause judges to be slow in recognizing and addressing chronic health conditions. Chief among them: We work in siloed chambers that isolate us from professional peers, and because we hold positions of authority, court staff are hesitant to raise concerns about our performance.
It is important for judges to be aware of this dynamic and to plan for the possibility that an untreated health condition might impact the public’s perception of the court. Two former colleagues of mine experienced this. In one case, lawyers who had practiced for years before a very capable judge noticed that he began asking questions that retraced topics they had already covered. Counsel began to wonder whether the judge was having trouble following proceedings. In the other case, lawyers and litigants both expressed concern that a judge was increasingly short-tempered, even though he had been known throughout his career for his especially genial nature. It fell to the presiding judge to raise these issues with the judges, and although it was not easy to broach the topic, both expressed gratitude for receiving the candid feedback.
The first judge readily volunteered that he was having trouble hearing and had not recognized the extent of the problem until it was called to his attention. His situation was resolved by installing a device that synced his hearing aids to the courtroom audio feed. The second judge explained that he was suffering from chronic back pain that was interfering with his ability to sleep. He knew he was sleep-deprived, but he was unaware of the extent to which his condition was impacting his interactions with others. He, too, followed up after the concern was called to his attention.
Because it is predictable that judges will experience declining health over time and equally predictable that these problems are difficult for others to raise, some courts have encouraged judges to adopt a buddy system by which judges affirmatively ask one or more colleagues to pledge that they will not delay in bringing such issues to each other’s attention should the need arise. The duty to come forward in these circumstances has been the subject of articles in professional journals and the mainstream media, so it is not new news. But it is worth considering that judges can help ensure that health concerns are raised early by talking about this in advance. I know that it will be terribly difficult if the day ever comes that I need to raise a performance concern to the judges with whom I exchanged this promise. I suspect they feel the same way. But if that circumstance does arise, the commitment we made to each other will surely make it easier to raise the subject without procrastinating.
Remote Access Can Level the Economic Playing Field
Long before COVID, many state courts employed technology to permit remote participation and observation of their court proceedings. For counsel in the trial court, the advantages are primarily economic. Lawyers remotely attending trial-setting conferences, status conferences, and motions hearings can charge their clients only a fraction of what they would have to bill if they took the time to attend the proceedings in person. The travel time to an appellate venue is often even greater, so the cost of appellate litigation rises sharply if appellate courts require in-person attendance. Worse, when legal issues are not addressed by controlling authority, but the amount in controversy does not justify the cost of air travel and hotel accommodations, economic restraints can force litigants to forgo arguments on their appeals altogether. It is hard to imagine a scenario that is more likely to reinforce the perception that lower-income litigants are at a significant economic disadvantage in our courts.
Allowing remote access also can make the difference between litigants being able to see their cases presented to the court and having to wait to hear about it after the fact because even where long-distance travel is not required to attend a court proceeding, missing time from work inevitably is. Remote access allows litigants to see their cases presented, hear counsel’s arguments, and observe engaged judges questioning and considering the merits of the parties’ positions in real time. In this way, allowing remote access can level the economic playing field, promote access to justice for those living outside urban areas, and dramatically increase the likelihood that litigants will come away from the process knowing that their side of the story was heard. Whether they win or lose, litigants’ confidence in the judiciary is enhanced when the public can watch cases aired in court and recognize that legal principles control the outcomes.
Experience shows that the public is indeed interested in attending court proceedings remotely and that the audience is not limited to law professors, lawyers, and law students. Since 2010, the Ninth Circuit has live-streamed its arguments, enabling the public and press to remotely attend arguments as they happen in the Circuit’s 13 courtrooms on the West Coast, in Honolulu, and in Anchorage. The publicly available archive on the Circuit’s website now includes over 10,200 oral arguments that members of the public have accessed over 6.5 million times.
Remote access also enhances the public’s trust in the courts by providing an economically viable way for the press to accurately report verdicts and other court rulings. With remote access, reporters can listen to proceedings and verify their facts before going to print. This has become increasingly important in recent years because it is now rare for designated reporters to be assigned to cover courthouse beats. When verdicts or court rulings are incorrectly reported, it can take days to correct the public’s perception of events, and confidence in the process suffers.
Moving Forward
Restoring the public’s confidence in the judiciary will not be easy, and it will surely take time. But there are constructive steps that we can take. Making court proceedings and court systems’ rules and policies as accessible and visible as possible will enhance public trust. We can also structure opportunities for members of the public—including members of the bar—to provide feedback consistent with our ethical boundaries and can encourage judges to help each other diligently meet their ethical obligations. Over time, small steps can make a difference.