by Jim Carroll, Esq.
PRESIDENT’S COLUMN Criticism of Judicial Officers— When Should We Act?
As I write this column, the United States
Supreme Court is poised to take up the mat- ters of U. S. Dept. of Health and Human Ser- vices v. Florida, Dkt. No.11-398, and Florida v. U.S. Dept. of Health and Human Servic- es, Dkt. No. 11-400. The Court has allocated six hours over three days to hear the argu- ments of twenty-six states challenging spe- cific provisions of the Patient Protection and Affordable Care Act of 2009 on constitution- al grounds. The issues include the applica- tion of the Anti-Injunction Act, the constitu- tionality of the minimum coverage provision, severability, and the mechanism used to en- force expansion of Medicaid eligibility on the several states. These are, without question, blockbuster cases as indicated by the hours of argument allocated by the Court, the 139 amicus briefs that have been filed, and the in- tense lobbying and media blitz that has been devoted to the Court in the preceding days and weeks.
Fate has also dealt Vermont its own block- buster Commerce Clause/full faith and cred- it case, albeit on a more local level. Judge Murtha has drawn the assignment of hear- ing Entergy Nuclear Vermont Yankee, LLC. v. Shumlin, et al., Dkt. No. 1:11-cv-99, which ad- dresses the extent to which the Atomic Ener- gy Act preempts Acts 74, 160, and 189 and the re-licensing of Vermont Yankee. Again, the media scrutiny and the public interest in the outcome of this case on the local level are intense.
As each member of our Association well knows, the process of sifting through the competing facts and law to reach a decision in either of these cases is not simple or easy. These rulings will ultimately turn on the au- thority of a state or a branch of government to legislate, not on whether the challenged legislation is best suited to promote the pub- lic good or welfare. Basic principles of our democracy are at stake; full faith and credit, preemption, and the power to regulate com- merce “among the several States by requir- ing individuals to enter the health insurance marketplace or suffer a fine.”
While it is unlikely that the actual merits of the contested legislation will play a significant role in the outcome of these cases, it is al- most certain that the ensuing public criticism will focus on the wisdom of universal health care and the continued operation of an aging nuclear facility. This criticism is fair enough given that the decisions will help determine, for better or worse, whether Vermont Yankee
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continues to operate as our neighbor and whether we will be required to carry health insurance. In making these decisions, howev- er, we should not forget that these jurists, re- gardless of public perception, are doing no more than exercising the role allocated to our third branch of government; they are main- taining the balance of power between and among our established political subdivisions. Viewed in this way, it is easy to see how an independent judiciary is critical to our survival as a democracy. To paraphrase Justice Breyer during his recent visit to Vermont, “who bet- ter to fill this role than judges who are not elected, are required to make decisions that are unpopular and, as human beings, are quite possibly wrong.” During a recent Sen- ate Judiciary Committee hearing called by Senator Leahy to discuss the role of judges in our democracy, Justice Scalia commented that the real key to our freedom and contin- ued experiment in democracy is the structure of our government, including an independent judiciary. Without a plan for the distribution of power, our individual liberties are noth- ing but “parchment guarantees.” It is gov- ernmental gridlock generated by the balance of power, and the judicial branch’s occasion- al participation in gridlock, that provides the main protection of our individual liberty. In Vermont, we are the beneficiaries of a
strong and independent judiciary. Chapter II, section 28 of the Vermont Constitution pro- vides that “justice shall be impartially admin- istered, without corruption or unnecessary delay.” The Governor fills judicial vacancies for six-year terms with the advice and con- sent of the Senate. Every six years, “the ques- tion of continuance in office shall be submit- ted to the General Assembly” with the judge or justice retaining the office unless a majority of the General Assembly votes otherwise (Vt. Const., chap. II, § 34). The wisdom inherent in these provisions allows for judges who can act independently of popular opinion while assuring that they will be ultimately account- able for their decisions and conduct through a formal retention process. Nonetheless, there are times when judg-
es are faced with making complicated and unpopular decisions that defy the efforts of well-meaning reporters to encapsulate them into digestible sound bites. There are also times when a judge must make an unpop- ular decision in order to “be faithful to the law” and not be “swayed by partisan inter- ests, public clamor, or fear of criticism” (A.O.
THE VERMONT BAR JOURNAL • SPRING 2012
10, Canon 3 (B)). It is at these moments when we, as lawyers, can seize the opportunity to reaffirm the role of an independent judiciary by explaining the complexity of the decisions at stake. This may and should involve a critical analysis of the decision itself. It is worth reminding ourselves, however, that when the criticism shifts to an unsubstan- tiated attack on the personal integrity of a sitting judge or justice, or when the criticism displays a complete lack of understanding about the role of an independent judiciary, we are the voice of a branch of government that has no other public outlet. To that end, in 1999 the VBA Board of Managers adopted a plan of action in response to criticism of judi- cial officers “to ensure that judicial officers, as essential leaders of the legal system, are not only treated fairly and with appropriate digni- ty, but that misunderstandings of the law and the role of judicial officers are addressed and clarified.”
Given the magnitude of the issues cur-
rently before the courts on the national and state level, opportunities to engage mem- bers of the public in the substance of the de- cisions already made and those to come are sure to arise. I urge each of you as officers of the court to engage all who will listen in an informed, critical analysis of each and ev- ery decision. I also urge each of you to rein- force the role of judicial officers and the need for judicial independence in our system of government. Only in this way can the inevi- table personal attacks against those fulfilling a sworn duty to the people be transformed into a constructive dialogue about the merits of a decision. Many thanks, Jim
____________________ Jim Carroll, Esq., is President of the Ver- mont Bar Association and practices law with the firm of English, Carroll and Boe, P.C., in Middlebury.
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