Politics » Politics Feature

VIEWPOINT: Judging the Justices



 On August 3, we vote to either keep or throw out some of our Tennessee Supreme Court judges. Holding elections for judges is ordinarily the worse way to choose them. That is because the only job of judges should be to find out what the law is, understand what it intends, and enforce it. Ordinarily, there would be nothing for the average citizen to vote on about that, other than the legal training, skill, energy and experience, and the intelligence of the judge. And those are things which the average citizen would usually have no way of knowing. The news media know little, and say almost nothing about the candidates. Only the lawyers who go to court regularly are in a position to know the qualifications of judges.

Two basic philosophies have developed in the legal and judicial professions. The first believes that judges are limited to finding the written law, finding out as best they can what those who wrote and voted for the law, either in the legislatures or the constitutional conventions, intended for it to mean, and enforcing that meaning, leaving to elected legislators the making of necessary social and legal changes. The other believes that, regardless of what those who wrote, and those who voted for the law intended, it is merely a general guideline which the judge is free to interpret as he or she sees fit, in accordance with the judge's own sense of what the law ought to be, and consistent with "modern trends."

For the last 30 years or so, most of the members of our state Supreme Court have followed the latter view of their job. For example, they have found a "right to privacy" in our state constitution.  Presumably they found such a right simply because they thought it is a good thing, which in some forms it may very well be. It is not intended here to dispute that point. However, nowhere in the state constitution is any such thing mentioned, and it is impossible to see how the constitutional conventions, whoever heard of such a thing, could have intended it to be in there. But our state Supreme Court not only fond it, but found it to be greater than the one the U.S. Supreme Court invented. The Tennessee Supreme Court has, not surprisingly, had some difficulty in saying what this right means, since it is nowhere written down, and they are the authors of it themselves.

To those would say that they like the results of such judicial methods, the proper reply would be that they have missed the point of this essay. Even dictators may make decisions and bring about results which we like. But it should be remembered that the same methods may be used some day to make up rules which we do not like and never would have voted for.

This philosophy which our supreme court has adopted has been applied by them also to the customary, or "common" law, which has always governed our ordinary daily activities regardless of any laws passed by the legislature. The court has consistently found new ways for people to sue each other, which were hitherto unheard of, or long settled as unsound. For example, children may now sue their parents, gas stations ma be sued for swelling gas to intoxicated persons who are enabled thereby to later cause auto accidents, shopping centers may be sued for the actions of criminals who come onto their parking lots, and the police can be sued for wrecks caused by chasing fleeing criminals. While these may be beneficial policies, no instance in which the court has created an additional protection from the expense and hardship of litigation comes to mind, even though everyone pays the price of lawsuits, including the loss to the labor force of witnesses attending trials, the cost of creating more courts, the cost of attorney fees and the increase in product costs and insurance rates. The court has not hesitated to change some of its own carefully thought-out rulings only some 20 years after they were made, as well as interpretation of legislation settled for over 100 years. The result is that no attorney can advise his or her client with certainty how the law will be interpreted, and the expense to society of constantly re-litigating settled questions, does not seem to be considered.

The questions of assuming the power to control the daily activities of the elected local courts, television sensational trials for the entertainment and titillation of the public (since no others are aired) and permitting attorneys to be designated to replace judges in emergencies so that cases are not unnecessarily delayed, are among the valid ones for our state Supreme Court candidates.

The point of all this is that it will no longer do for our Tennessee Supreme Court judges, when up for a vote on their reelection, to say that all they do is enforce the laws which others have made. As long as any feel free to make new laws themselves, they may properly be asked by the voters whether they intend to continue to do so, and, if so, what laws they intend to make. The U.S. Supreme Court held a few years ago, in effect, that if some states, like Tennessee, are going to make politicians of their judges by electing them, the candidates have the right to be asked, and to say what they stand for.

(Robert Lanier is a retired Circuit Court judge; this is the full-length version of an essay which appears in abbreviated form in the July 27th issue of the Flyer.)

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