The Confidence Game: Public Perceptions of the Judiciary
Bruce M. Selya*
It is widely thought that a crisis of public confidence in the American judicial system is at hand, or, at least, is in the offing. Thoughtful observers fear that our courts and our legal system as a whole are under siege. The literature of the times adequately evinces the marshalling of the opposition forces. Contemporary bookshelves are filled with works criticizing the alleged excesses and perceived deficiencies of modern legal culture,(1) and similar critiques are appearing in the law reviews.(2)
The complaints are several and generally predictable:
--that the courts are congested, inefficient, and not "user-friendly";
--that the judges are usually lenient, sometimes indolent, and occasionally even corrupt;
--that the judiciary is not sufficiently diverse or representative;
--that the decisional and disciplinary processes are too secretive;
--that the law itself is (still) too complex or esoteric or inaccessible;
--that the legal system, in terms of access and treatment, is economically discriminatory; and, of course,
--that attorneys, the officers of the courts, are too exploitative or abusive and do not act in the public interest.
Some of these complaints are valid, at least in part, while others are likely misguided. Some are too simplistic and still others are probably blown out of proportion. But perception is itself a form of reality, and to the extent that each of these criticisms in some way affects the public's conception of the judiciary, and in turn the stability of our institutions, they warrant our serious consideration.
In this brief essay I propose to consider two aspects of the problem of public confidence in the judicial system. First, I examine the validity of the larger claim that there is a crisis of public confidence abroad in the land. Only by understanding the true nature of the "crisis" (which includes determining that there is one) can we begin to gauge the appropriate responses. Second, insofar as public confidence does fall short--whether justifiably so or not--I suggest a few ways in which the judicial system--and judges in particular--might respond to the problem.
Good faith observers and critics of the judicial system will acknowledge that a proper inquiry into the nature of the "crisis" must scrupulously avoid oversimplification. Any attempt to address systemic problems requires triage--a recognition that not all alleged problems associated with the judiciary are equal in terms of their causes, nature, and redressibility. It is tempting, especially among denizens of the media, to mass the entire array of actual and potential problems together indiscriminately, especially insofar as their aggregation may provide greater shock value. In the end, however, this approach is both misleading and counterproductive in terms of actually doing something about genuine problems.
Rather than lump all the problems of the modern judicial system into a teeming bundle, we ought to think more subtly. For example, one could attempt to separate "new" problems from "old" problems--to distinguish problems of recent vintage from those that have plagued the judicial office from time immemorial. Such an approach may assist in the determination of priorities and the allocation of responsive efforts.
Alternatively, one could attempt to separate problems associated directly with the judiciary from problems more generally associated with the government (or the public's perception of the government). This approach might also prove useful, since the larger or more general the problem, the less likely it is that the judiciary can unilaterally respond in an effective way.
Likewise, one could attempt to categorize the problems by their ease and mode of redress: some problems can be remedied with reasonable facility through additional funding or increased efficacy, while other, deeper problems may necessitate public education or a transformation of the media approach and attitude toward the judiciary.
While other distinctions and approaches might be available, compiling a laundry list is unnecessary at this juncture. The point is merely that oversimplification, despite its capacity to prompt reform, is worth resisting if our efforts at reform are to be effective. Because the manner in which one characterizes each alleged problem is likely to determine the nature and scope of ensuing reform efforts, informed realism must remain our guiding principle.
It is with an eye to this principle that we turn to the crisis of public confidence in the judiciary. To resist oversimplification is not to deny that the courts have problems. Several of these have already been noted: inefficiency or overspending, the appearance of excessive leniency in criminal cases, episodic corruption, unrepresentativeness, secrecy, and so on and so forth. Some of these problems are real, and they call for appropriate correction. If courts are to repel the increasingly ferocious attacks of an alienated public and a marauding political establishment, there is no room for false pride or wilful blindness. In general, court dockets are too crowded, the attention paid to the issues in each individual case has declined over the years,(3) and parties may well feel less satisfied by their encounter with the judicial system. There is certainly anecdotal evidence to this effect,(4) and empirical studies bear it out.(5)
As for correcting or resolving such problems, their modes of redress and the tradeoffs associated with alleviating them have been rehearsed many times by legislators, reformers, academics, and others. For example, making the courts more efficient may necessitate the curtailment of certain public services, which in turn may decrease the accuracy of verdicts or may disproportionately disadvantage less wealthy litigants. Each of the other problems similarly presents its own unique calculus of costs and benefits. Furthermore, identifying the precise place at which one should strike the balance between these competing values and interests is not a judicial task at all, but more closely resembles a classic legislative or administrative function. Thus commissions and task-forces are established; the legislature assigns the matter to committees and subcommittees, which in turn hold hearings; and the process of representative deliberation generates proposed solutions. In virtually every instance there is no single obvious answer, but, rather, a rack of imperfect alternatives from which reasonable people make different selections.
Yet were inefficiency and periodic impropriety the courts' most serious problems, there would be no "crisis" and we might be content to leave our shortcomings entirely to this process. Acknowledging such statutorily redressible issues, however, barely scratches the surface. Deeper down, there is a cluster of problems associated with the apparent decline in respect for the courts as authoritative institutions. These problems are not a function of case overload or congestion as such, nor can they be casually written off as an inevitable byproduct of the need to make unpopular decisions from time to time. Rather, these problems reflect a larger deterioration of the ideal of legitimate government and the respect for authority that is presumed, or at least provided for, by the Federal Constitution and by the respective state constitutions.
To the extent the courts are under attack, therefore, we should understand the attack to be one aimed at authority and fundamental legitimacy as much as inefficiency, unrepresentativeness, excessive cost, or unfairness. As always, the fringes are rife with examples, such as radical libertarian groups that deny the jurisdiction of federal law enforcement and federal courts in favor of local sheriffs and homegrown "common law courts." But even in the mainstream of American politics, there are serious undercurrents that both spring from and seek to tap into public resentment and distrust of unelected judicial authorities. Thus we have presidential candidates calling for the impeachment (or in the case of the President's spokesperson, the resignation) of a federal judge who has dared to make an unpopular constitutional ruling, and another candidate getting applause on the campaign trail when he refers to federal judges as "`little dictators in black robes.'"(6) Such examples, from both the extreme and the center, reflect a public at least somewhat wary of the judiciary's authoritative responsibilities in our system of constitutional government.
This brings me to the question of appropriate responses. In view of the deeper problems of public animosity--or at least ambivalence--I suggest that any set of feasible responses must include at least four components: public education, media reform, judicial candor, and an ethic of prudence.
First and foremost, the public must be educated about the history, structure, purposes, and functioning of the courts. We should have no illusions that the public is already adequately informed about even the basics of our legal system.(7) As I learned at a conference recently, college-level government teachers are clamoring for entry to an American Judicature Society educational program on the American court system, and most arrive with woefully little comprehension of the mechanisms of the system. If this specialized segment of society seems so out of touch, it sends shivers down my spine to imagine the level of authentic ignorance among the general public.(8)
Although public informedness can often be a medium of political cynicism, history teaches that public ignorance is the ultimate enemy, and not the ally, of legitimate government. Yet at present, the public lacks even abecedarian knowledge of the judicial branch. The public cannot appreciate the courts and their function unless it understands the courts and their function.
Related to enlightenment of the public is the need for quality coverage of the courts by the media. I say this for one very simple reason: "Because few individuals have direct experience with the [justice] system, the overwhelming number of citizens get their knowledge of the courts and crime through the media. This information comes through television in the form of news, entertainment programming with crime-oriented themes, and so-called `infotainment.'"(9) The problem is that all too often the media fail to cover judicial decisions and activities at all, and when newspapers do manage to allocate a few inches (or television stations a few minutes), they tend to focus on the sensational or the extreme, whether that be the substance of a decision, or some serendipitous side effect, or the possible revelation of judicial impropriety. Even such specialized sources as Court TV and CNN's Burden of Proof--which represent at least some improvement over the vacuum that has existed to date--by their nature emphasize primarily the eye-catching cases and attention-grabbing issues that arise only occasionally in the course of the judiciary's work. What is not seen is a hard-working bench that functions quite well 99 44/100 percent of the time, that decides cases in a legally legitimate manner, and that maintains delicate balances among competing values, interests, and government institutions. By focusing on the sensational or aberrational, the media implant within the public psyche a potential for undue cynicism and the basis for rejecting judicial authority.
Of course, this is not a plea for either prior restraints or the wholesale repeal of the First Amendment; rather, it is a plea for balance and moderation. It is also to some extent a confession that judges, by and large, have impeded the development of a more responsible press by turning their backs on the media. For example, before Judge Gilbert Merritt was appointed chair of the Executive Committee of the Judicial Conference of the United States--the judicial branch's policymaking body--in October 1994, the Judicial Conference informed the press of important actions taken at its Judicial Conference's annual meeting through little more than distribution of the agenda and a list of votes taken on various agenda items. With no other structure or additional sources of information for confirmation or clarification, media stories of judicial branch policy decisions were easily bollixed. Judge Merritt instituted the simple practice of making himself available each day of the meeting for questions concerning the events of the day, and almost immediately both press relations and press coverage saw marked improvement.
As this example illustrates, we can rest neither the blame nor our hopes solely on the shoulders of the media. The judiciary itself bears some responsibility for ensuring better media coverage of judicial affairs. What is more, judges must also pay greater heed to the possibility that, through the quality of its work and the propriety of its conduct, the judicial branch possesses its own ability to educate the public, inform the press, and enhance its reputation. One mode of education and enhancement is the more liberal use of candor in judicial opinions.(10) This means recognizing that judicial opinions will be scanned by a wider audience than litigants, lawyers, and other judges, thus making especially desirable the full and honest disclosure of reasons underlying decisions and, where appropriate, explanations of the decisional process.(11)
Candor is a necessary means of judicial accountability (particularly if the normal modes of governmental accountability, such as periodic elections or term appointments, are absent). Candor ensures decisional quality, satisfies the right of litigants to a justification for the resolution of their case, and is necessary to put future litigants and lawyers on notice of the state of the law. But more than that, candor is central to any relationship based on trust and respect. Stated differently, the absence of candor is arguably a sign that the speaker does not fully respect the listener. In turn, the speaker should not be surprised if the listener, as a matter of reciprocity, loses trust in, and respect for, the speaker. To the extent that members of the public base their perceptions of the judiciary on their own direct encounters with the court system (and not just vicarious experience through the media), candor will enhance perceptions of integrity, honesty, and fair play--bedrock values in any just legal system. In short, candor is always a virtue--and sometimes a necessity--in the ongoing struggle to generate and preserve public respect.
A fourth response available to judges is the practice of the timeless virtue of prudence. We live in an increasingly rationalistic legal culture, one defined not by moderation but by outer limits. In such a culture, it is especially important--though perhaps more difficult than ever--to foster and maintain a prudential view of one's function as a judge.
What do I mean by "prudence"? Defining this concept is more of an art than a science. For instance, one observer has described prudence variously as a sense of the possible, with a realistic appreciation of the impossible or impractical, as a knowledge of the present, with an eye toward the future yet a profound respect for the past, and as a recognition of the need for certainty, tempered by an appreciation of the uncertainty and frailty of the human condition.(12) Prudence may be all of these, but for judges in particular, it is (at least) a respect for one's own independence, with an appreciation of the need to respect coordinate branches and levels of government.(13) Perhaps, at bottom, prudence simply represents an appreciation for one's own limitations (whatever her station), and the humility to act accordingly.
With respect to judicial decisionmaking, the ethic of prudence may play out in a variety of different ways. In its more familiar iteration, prudence counsels judges not to reach out and decide large, controversial issues in the absence of a necessity to do so. The prudent jurist will typically decide cases on the narrowest, surest ground available, leaving tougher calls, with broader implications, for future cases that squarely present them.
Yet there is admittedly a downside to this approach. When judges write opinions narrowly, they often do so without explaining or justifying their refusal to go further, and, thus, the public may tend to underappreciate the importance of this kind of prudential behavior. While courts cannot be expected constantly to undertake lengthy disquisitions on the dangers of dicta and unnecessary rulings, we should not always assume that the public understands the institutional limitations on the federal judicial role, even when we recognize and account for such limitations in our opinions.
A second aspect of prudence in judicial decisionmaking is much less frequently remarked. When courts do squarely face controversial decisions, prudence, as I understand the term, may require judges to make their decisions as compelling as possible to the parties--and the public--on whom the decisions are imposed. Put somewhat differently, when a result, though legally sound, is likely to seem counterintuitive or not easily understood, a court may find it wise to go beyond the bare reasoning necessary and sufficient to dispose of the case.
This aspect of prudential decisionmaking may appear inconsistent with norms I have already addressed, including candor and more familiar notions of judicial prudence. Yet as for candor, I am not suggesting that courts be anything less than candid about the reasons that support a particular outcome. I am suggesting, however, that courts' sensitivity to their role as social institutions may on occasion compel them to bolster or defend an outcome by citing more supporting arguments than are strictly necessary to reach a particular result (and, sometimes, to buttress sound legal arguments with bits of practical wisdom).
Nor do I find this contrary to the restraint prudent courts impose on themselves, by not reaching out to decide unnecessary issues. I am not arguing that courts should sometimes reach issues they need not reach. I am simply suggesting that, on occasion, opinions may need to serve up a heartier fare than the sparse legal analysis that may normally suffice to decide a particular issue, if doing so will help ensure public acceptability of the court's judgment. In this view, a court may, for example, decide to discuss openly the policy reasons that support an interpretation of a statute that is otherwise compelled solely by its text. The point is that even though not everybody will (or should, for that matter) agree with every judicial opinion, the public trust will likely be stronger if those who disagree at least recognize that the court's position is sustained by an intellectually compelling rationale.
This view of prudence is driven partly by a recognition that the public face of the judiciary differs significantly from that of its coordinate branches. When Congress or even an executive agency acts, it is very often unclear which reasons motivated the action. Some legislators may have had one thing in mind, while others may have had different ideas, and the President may have had still other designs in signing the legislation. In administrative rulemaking, where hundreds or perhaps thousands of pages of comments go in and a final rule comes out, it may be equally difficult to discern which of the available reasons for acting guided the promulgators. The judiciary, by contrast, operates out in the open through argument, judgment, and opinion. The use of this process means that the reasons for judicial action are incorporated into the action itself.
In terms of public perceptions of the judiciary, this quality of the judicial process could be a tremendous advantage. But if the process of explanation is meant to enhance rather than undermine public confidence in the judiciary, courts must act prudently when they write and issue opinions. A court's primary responsibility, of course, is to decide cases correctly, and in the process, to tell the story behind its actions in a legally appropriate way. But within the framework of sound legal rules, a court should also endeavor to present the story in a way that is intelligible to, and respectful of, the public at large. Prudent opinions will account not only for strictly legal values, including customs requiring narrowly drawn opinions, but also public values, including popular confidence that the judiciary is making intelligent judgments.
A wag once said that judges are people of great trials and many convictions. Public confidence in the judiciary, it sometimes seems, might be stronger if we had fewer of the former and more of the latter. But, to the extent that problems with public confidence in the judiciary has eroded, the sources of the erosion may be more deeply embedded in our civic consciousness than is typically presumed. To turn the tide, judges, lawyers, and other observers must be willing and prepared to educate the public about the judiciary and the judicial function, the media must be willing to assist in that project, and the public must be willing to accept that education. For judges like myself, it is especially important that we consider seriously the message we send when we perform our public function, and the way in which our performance will affect the relationship between the judicial branch and the larger community. These are the only winning moves in the all-important confidence game.
* Judge, United States Court of Appeals, First Circuit; Adjunct Professor of Law, Boston College Law School; Adjunct Professor of Law, Boston University Law School; A.B. 1955, Harvard College; J.D. 1958, Harvard Law School. I am grateful to my law clerk, Jonathan Hacker, for his invaluable contributions to this essay.
1. See, e.g., Mary A. Glendon, A Nation Under Lawyers: How the Crisis in the Legal Profession Is Transforming American Society (1994); Philip K. Howard, The Death of Common Sense (1994); Anthony T. Kronman, The Lost Lawyer: Failing Ideals of the Legal Profession (1993).
2. See, e.g., Edward D. Re, The Causes of Popular Dissatisfaction with the Legal Profession, 68 St. John's L. Rev. 85 (1994).
3. I suspect that it is not quite accurate to say that the attention paid to each case has declined, for my hunch is that the average case today is considerably more complicated than the average case twenty or thirty years ago.
4. For example, the growth of alternative dispute resolution (ADR) mechanisms, such as private arbitration, may in part reflect public dissatisfaction with the official legal system. See Kim Dayton, The Myth of Alternative Dispute Resolution in the Federal Courts, 76 Iowa L. Rev. 889, 894 (1991) ("[T]here is a widespread perception that ADR is a realistic and practical solution to the problem of delayed and costly justice that ensnares our federal courts.").
5. See, e.g., Daniel W. Shuman & Jean A. Hamilton, Jury Service--It May Change Your Mind: Perceptions of Jurors and Nonjurors, 46 SMU L. Rev. 449, 450-51 (1992) (discussing empirical evidence of public confidence in the fairness of the court system).
6. James Bennett, Looking Ahead to California Vote, Buchanan Lashes Out at Immigrants, N.Y. Times, Mar. 20, 1996, at D21 (quoting Patrick J. Buchanan)
7. See Paul Raymond, The Impact of a Televised Trial on Individuals' Information and Attitudes, 75 Judicature 204, 205 (1992).
8. Unquestionably, one of the deepest scars left by the Bork debacle and the ensuing degeneration of the confirmation process vis-à-vis Supreme Court nominees, is the loss of sophisticated and meaningful civic discussion of the role of the courts and the Constitution in our public and private lives.
9. David A. Harris, The Appearance of Justice: Court TV, Conventional Television, and Public Understanding of the Criminal Justice System, 35 Ariz. L. Rev. 785, 786 (1993) (footnotes omitted).
10. See generally Scott C. Idleman, A Prudential Theory of Judicial Candor, 73 Tex. L. Rev. 1307 (1995) (discussing role of candor in judicial opinions).
11. This does not mean that every opinion on every issue should be published, however. See Bruce M. Selya, Publish and Perish: The Fate of the Federal Appeals Judge in the Information Age, 55 Ohio St. L.J. 405, 409-12 (1994) (advocating limited publication of federal appeals court opinions). It does mean that every opinion, published and unpublished, should be a candid and sufficiently complete expression of the decisionmaker's views on the disposition of the case.
12. See Martin Shapiro, Who Guards the Guardians? Judicial Control of Administration 136 (1988).
13. See Idleman, supra note 10, at 1397 n.308 (quoting various views of prudence in judicial decisionmaking).