The Scene: The State of the Union Address, front row.
Thought bubble above the head of Chief Justice John Roberts:
“Where does this guy come off criticizing our decisions when he hasn’t the slightest idea of how we come to them?”
We all know of people who disparage judges when they are on the losing side of a decision, and without any understanding of the decision beyond that it was against them. They apparently believe that judges decide issues according to their own biases. Some may even think that judges employ dartboards to decide cases. Because these beliefs are drastically uninformed, I ask that the next time you hear a sore loser deride a judge and demand the judge’s impeachment, consider the typical decision-making process of a judge.
Our nation is governed by the rule of law, so litigants may have reasonable expectations about the merits of their legal positions on cases brought by and against them. Without the rule of law, decisions would be wildly unpredictable because cases and issues would be decided by whim, chance, or connections. Accordingly, judges do not decide cases based on anything other than the law, which requires that they must perform legal research to unearth the pertinent law or “binding precedent.” If research does not unearth such precedent, it will at least guide the judge’s discretion in fashioning a resolution of the issue based on analogous law or similar cases. Even if an experienced judge knows the recent governing precedent, research must still be performed to ensure that the precedent has not been overruled or altered. Judges also want to cite in their decisions at least one case that is factually similar to the case at bar, which requires further research. It is all about assuring litigants and the public that the rule of law is stable and based on precedent and reason.
While anyone can be trained to perform legal research, it is a craft that requires a thorough understanding of the facts of the case and the legal issues arising from those facts. Absent such an understanding, the results of the research will likely be skewed and not on point. Such results may be reversed on appeal, thereby assuring the public that errors in judgment may be rectified. Of course, even if the judge’s search for the law is properly based on the facts of the case, the law may still be unclear as to the proper resolution, requiring further research to find analogous cases and issues which may provide guidance as to the proper result.
There are rules of evidence that provide needed guidance, and judges are grateful for them, as each decision is of crucial importance not only to the litigants but to the rule of law as well. So much for biases and predilections. These rules of evidence include “burdens of proof.” Burdens of proof facilitate the decision-making process and foster reasonable expectations as they set forth legislatively enacted standards that must be met before a judge may determine whether evidence presented by a litigant is sufficient to prove the litigant’s position in a case.
To adequately support a criminal conviction, the burden of proof that must be met is “guilt beyond a reasonable doubt.” The onerousness of that burden is warranted by the potential penalties for a criminal conviction, often including incarceration. In a civil case, by contrast, the burden of proof is “the preponderance of the evidence,” or the greater part of the evidence. Between these two extremes is “clear and convincing evidence,” which is applied in certain civil wrongs where the Legislature has determined that a person cannot be held liable on merely the preponderance of the evidence. Judges and juries are, therefore, required to decide cases and issues by applying the pertinent burden of proof to the evidence presented. A failure to do so renders the decision-making process unpredictable, thereby eroding the rule of law.
And so, the next time you hear someone, whether the president of the United States, a member of Congress, or anyone else, disparage a judicial decision as the product of bias or call a judge anti-American for following the Constitution, consider whether his or her own bias inspires the disparagement or whether there is a darker motive in play. If enough people are alert to the biases of those disparaging well-reasoned judicial decisions, respect for the rule of law may be maintained.
Hon. Barbara Jaffe is a retired Justice of the New York State Supreme Court and volunteer for Lawyers Defending Democracy.
