My desire to devote this year to the theme of respect emanated from a long-standing interest in the independence of the judiciary.
If you have read my previous columns, you know that my dad was a lawyer who had a tremendous influence on me. I learned about judges early on, as when I was four, my dad ran for a bench in Caddo Parish, Louisiana. He painted a bass drum red, white, and blue, with “Reeder Republican for Judge” painted on the head, and tied it to the top of his 1960 Chevy Biscayne. He lost . . . as did every Republican in Caddo Parish who ran for anything up until 1980. Shreveport was the home of many great judges. My dad had a law partner named John R. Pleasant, who had been a state district court judge in Caddo Parish and whom I affectionately called “Papa Judge.” Another one of my father’s law partners, Henry A. Politz, my godfather (“Uncle Hank”) and a huge influence on me, ended up as chief judge of the Fifth Circuit. I grew up with Fifth Circuit Judge Jacques Weiner’s kids in Shreveport. Judge Tom Stagg lived around the corner. I share my Shreveport roots with another Fifth Circuit chief judge, Carl Stewart, who remains a good friend.
All this is to say that I have had an appreciation for the role and function of the judiciary from an early age. I don’t remember being aware of the decisions of John Minor Wisdom or the controversy surrounding Fifth Circuit decisions about civil rights in the early 1960s. I do remember, at five and six years old, sitting in the back seat of my dad’s 1960 Chevy while he and Uncle Hank spent countless hours registering Black people in Shreveport to vote. I remember the first time I heard someone refer to a judge as an “activist” judge. It was a pejorative criticism of a federal judge who had decided a voting rights case in favor of the Black plaintiff. The reference made my skin crawl.
An independent judiciary is a brilliant concept. Beholden to no one; free to objectively interpret and apply the law. It is not intended to be democratic. It serves only one constituency: the rule of law. My dad used to tell me, “It should come as no surprise that if you put the rights of the minority to the vote of a majority, the minority will lose.” This is the essence of an independent judiciary. Its purposeful lack of populist influence, however, is often the very basis of critics’ attacks. The phrase “judicial activism” was apparently coined by Arthur Schlesinger in an article in Fortune in 1947.
I have discovered that judicial activism can mean at least two different things: (1) the willingness to strike down precedent or the actions of other governmental bodies, the opposite of judicial restraint; or (2) deciding cases on policy preferences rather than an honest interpretation of the law. The former may be a judicial philosophy that should be taken into consideration when appointing a judge, but it isn’t in itself illegitimate. It is the latter definition, however, that we need to eliminate from our vocabulary. The assertion is rarely based on any evidence that the judge actually intended to ignore the law but, instead, presumes as much, because how could anyone honestly applying the law come to a decision that was the opposite of the critic’s policy view? For that reason, its use is intended to and is often successful in undermining the reputation of the judiciary and its judges. It is a direct attack on the foundation of judicial independence. Such criticism exposes a fundamental lack of understanding of the Constitution and reflects a lack of respect for our judiciary and all judges.
Respect for the judiciary means recognizing and proselytizing that every judge is trying as hard as he or she can to interpret and apply the law, unaffected by popular sentiment or political ideology or personal preference. Judges may be strict constructionists or originalists or textualists or activists (in the traditional sense), but they are each deserving of our thanks and our respect for their undying devotion to the Constitution and the rule of law.