“The Times They Are A-Changin’

Can we rely on each other to uphold the rule of law in this age of discontent?

The times might be A-changin’, but not in the way that Bob Dylan had in mind when he wrote his famous song some 58 years ago. Today’s changes have effectively turned us into a nation of insular ideologues—instead of Dylan’s idealists seeking social justice and the fulfillment of the lofty ideals aspired to by the creation of our country. Through the use (and abuse) of the ubiquitous social media that consumes and monopolizes our spare time, many have lost the ability to disagree without being disagreeable. In fact, it seems to me that many folks now believe that if you don’t express your disagreement by being as disagreeable as possible, you’ve failed to adequately make your point.

Recently, we’ve seen signs that “disagreeable” is morphing into “dangerous.” Even something that presumably would be a nonpartisan, noncontroversial concept, such as the protection of the independence and safety of our judiciary, has become the subject of dangerous and overt actions that undermine public confidence in our system and threaten the personal safety of the very judges who are charged with maintaining the integrity of that system. Worse yet, creating and enforcing laws and policies that would protect all judges have been turned into partisan exercises targeting, at least in my view, certain U.S. Supreme Court justices based upon their perceived political beliefs. (I was pleased to see our Illinois Supreme Court take up this issue and recently appoint its Committee on Judicial Security and Safety, which you can read about on page 14.)

I must now digress to offer this caveat: I’m not here to make a comment upon the political makeup of SCOTUS, how it got to be the way it is, or whether that is a good or bad thing. I’m also not making any comments upon decisions or to analyze or proselytize the what-or-why of decisions the Court has made. I don’t presume to tell any of you, my friends and colleagues, my thoughts on any of those issues.

No, my beliefs have nothing to do with the issue I present for you to ponder. As lawyers, regardless of our personal beliefs about any given decision or ruling, should we not be deeply concerned about the ongoing and increasingly disturbing attacks on the independence and safety of our judges? An independent judiciary is essential to ensure that the rule of law is respected and endures. Our judges must be free to make impartial decisions based solely upon the facts and the laws—and yes, that includes any given judge’s sincerely held belief as to the interpretation of those laws.

No matter how vehemently we might disagree with those interpretations, I submit to you that as lawyers we owe a special duty to the public and the system in which we serve to see to it that judges remain independent and safe. The safety of each judge in our legal system should neither depend upon nor be subject to the political beliefs of those outside of the legal system. The danger that presents to those of us inside the system is readily apparent. As lawyers, we need to elevate the debate above the din of social media and use our skills as advocates and influencers to explain why the importance of an independent judiciary isn’t lessened or diminished on a situational basis.

That is not to say that reasonable minds might not disagree with and speak out against decisions that we believe are wrong. Similarly, we don’t lose our First Amendment rights when we receive our license to practice law. Protest is how this country began and remains an integral and vibrant part of who we are. However, there are reasonable and appropriate limits on the exercise of our First Amendment rights. In my opinion, targeting judges and their families at their homes, stalking them, and other efforts to influence judicial decisions through personal harassment can and should be stopped.

Passion without pugilism

Exercising our First Amendment rights and expressing our disagreements should, like judicial decisions, be rooted in the facts and our interpretations of the law. Our disagreements should, in my view, never include disrespect for the court or threaten its members or their families. While I can appreciate the passionate expression of deeply held beliefs, I must draw the line here, no matter how deeply I might share those beliefs: The distinction between a protest on the steps of the Supreme Court and one in front of a judge’s home seems obvious to me, and is one I believe we must clearly make.

No judge should ever have his or her decision influenced by threats to themselves or their families. Our support for our judiciary should be akin to the old military aphorism, “we salute the uniform, not the person wearing it.” Simply put, when members of the public come to believe that even lawyers have no belief in or respect for the judiciary, we will have failed in our duty and ability to uphold the rule of law for the benefit of all. Only chaos will ensue.

The ISBA has consistently and without exception supported efforts by our courts and legislators to protect judges and their families from those who would attempt to influence our legal system by resorting to violence. Now more than ever, it is necessary for me to reaffirm that our position on this issue remains steadfast. We believe that judges should be able to feel safe in doing their jobs to ensure that our system of justice endures. The strength of that belief is not subject to nor is it dependent upon the outcome of any given case.

In short, whether we like it or not, lawyers are leaders. As such, we should hold ourselves to the highest standard of conduct, since so many of our clients, friends, and acquaintances look to us for information and guidance. When we forget that the safety of our judges and their families is of paramount importance to the viability of our legal system and therefore our democracy, we have failed in our roles as leaders.

To the extent it needs to be said, I will say it: The ISBA remains fully in support of the rule of law and the critical role that a safe and independent judiciary plays in it. We support all judges and thank them for doing a difficult job in increasingly difficult times.