By Mike Ozekhome

INTRODUCTION

In the last part of this intervention, we dealt with the following sub-topics: Self-Criticism by the Supreme Court; Legal and Contextual Frameworks (how Judges are gagged by the Code of Conduct for Judicial Officers; Laws prohibiting attacks on Judges and Appraising Relevant Laws and the Code of Conduct. In this part, we shall explore the following themes: Foreign Positions on Critiquing Judges focusing on the Unites States of America. Please read on.

FOREIGN POSITIONS ON CRITQUING JUDGES

POSITION IN THE UNITED STATES.

Going further afield, in the United States, (one of the oldest and largest democracies in the world), the situation is not much different from the above. Judgments and even judges do come under constant attack. I do not however subscribe to this. George W. Alger, writing over a century ago (in 1911) opined that “There exists today, no doubt a wholesome public opinion which protects our courts generally from the vilification and coarse libeling to which our legislative and executive officers are constantly exposed. To a certain extent, partisan platforms which protest against attacks upon the courts are healthy expressions of this public opinion. It is an encouraging feature of our democracy that at least in our attitude toward the courts, we have by general consent, decided to be civil. It is an attitude which today protects our courts from that criticism, unlimited either as to form or substance, which relentlessly pursues prominent members of co-ordinate branches of our government. It is a comparatively modern development of democracy”.

“This traditional American attitude to Judges and judgments appear to have shifted, to the extent, that over a century later, precisely in 2018, the Brennan Center for Justice, reacting to former President Trump’s criticism of Federal Judges, posited that: “Judicial rulings are criticized all the time and by all manner of people… indeed, past presidents have regularly complained about the court. This is as it should be. Judges aren’t immune from printed criticism. Like it or not, they are part of our political system. Their decisions can impact everything from how we fight terrorism to whom has the right to marry. Federal Judges in particular, have tremendous power – which they get to keep for life. That remarkable level of authority does not come with the right to never have one’s sensibilities offended by disparaging remarks”. The Centre then posted the question and answer: “ But, where, exactly, should we draw the line on criticism of the courts? Historical practice and some reflection about the role of courts in our constitutional system suggest several considerations. First, while it is quite common for officials to complain about an adverse ruling in the modern ara, it has never been considered appropriate to defy the ruling- or otherwise seek to undermine the court’s authority… Second, there is a difference between criticizing a ruling and personally attacking the Judge… of course. “Judges do sometimes behave illegally or unethically, in which case, personal criticism is fair, provided it has some actual basis. Other Judges have an off-bench habit of wading into political or other public debates… under these circumstances,(such Judges) open (themselves) up to return fire… Regardless, it is one thing to respond to a Judges political criticism and quite another to repeatedly question the personal integrity of Judges based solely on disagreement with their rulings. “There is also a difference between expressing disagreement after the fact and trying to pressure a judge to influence future decisions… more serious bullying- such a threatening impeachment for unpopular rulings – is clearing over the line. Third, it also matters who the Judge is U.S. Supreme Court Justices are at the top of the Federal judiciary, set binding precedents for the nation and are some of the most powerful people in the country. In contrast, trial Judges are closer to private citizens and lack the power, prominence and security details of members of the High Court. “They are less likely to experience an errant tweet as far more threatening than would a member of the Supreme Court. Finally, not all critics are the same. The President has a unique platform and with that comes unique responsibility. Personal attacks by the President can pose real safety risks, while even careless statements that suggest a court’s ruling should not be respected can do great harm to our system of government.” The message of the Brennan Center is clear: Go after the message; not the messenger. To drive this point home, Rule 30 and 31(1&2) provide that “a lawyer is an officer of the court; accordingly, he shall not do any act or conduct himself in any manner that may obstruct, delay or adversely affect the administration of justice”; “a lawyer shall always treat the court with respect, dignity and honour”; and also that “where the lawyer has a proper ground for complaint against a judicial officer, he shall make his complaint to the appropriate authorities.”
This is the way to go- a lawyer should make his “complaint to the appropriate authorities”. These authorities, it is respectfully submitted, refer to appealing such judgements to higher courts; asking for revision of such judgements as permitted by law; or channeling such complaints to an appropriate body such as the NJC. They do not include- and I emphasise this- personal media attacks on the very Judges that delivered the judgements. Such a step is ignoble, contemptible and dishonourable, especially considering the fact that such Judges are not in a position to reply, or defend themselves. Such must be avoided.

George Alger (“Criticising the Courts”), opines that in the U.S: “There exists today, a wholesome public opinion which protects our courts generally from vilification and coarse libeling to which our legislative and executive officers are constantly exposed. To a certain extend; party platforms which protest against attacks upon the courts are health expressions of this public opinion. It is an encouraging feature of our democracy that at least in our attitude towards the courts, we have, by general consent, decided to be civil. It is an attitude which today protects our courts from that criticism, unlimited either as to form a substance, which relentlessly pursues prominent members of coordinate branches of our government. It is a comparatively modern development of democracy. “The distinction made between the courts and other executive and legislative officers as to the form of criticism applicable to them did not exist at the time our government was founded, nor in the so-called ‘Golden Age’ of the Supreme Court. It was recognised neither by the public, nor by the great statesmen of the past” (Underline supplied for emphasis).

HOW JUDGES HAVE BEEN SUBJECTED TO VIRULENT CRITICISMS

It has been common place for Judges to be subjected to virulent and intemperate criticisms for doing their work. Teddy Roosevelt once said of Justice Oliver Wendell Holmes, “I couldn’t carve out of a banana a Judge with more backbone than that”. Apparently, trying to pressure the Supreme Courts to influence a future decision, President Barrack Obama once raised Sime eyebrows when he weighed in concerning the Affordable Care Act litigation while it was still pending before the Supreme Court. Chief Justice of the US, John Roberts, in an appearance at a judicial conference in Colorado, could not understand why the public has turned against the US apex court. Hear him:“So obviously people can say what they want, and they are certainly free to criticise the Supreme Court and if they want to say that it’s legitimacy is in question, they are free to do so…. but I don’t understand the connection between opinions that people disagree with and the legitimacy of the court.” It appears that unknown to Justice Roberts, the people are not questioning the court’s legitimacy simply because they disagree with opinions of the Supreme Court, but because they are worried that the Justices have broken from their usual adherence to precedent, offered dubious rationales and voted in what appears to be partisan lockstep. Polls had thus shown increased political polarisation in responses to the Supreme Court.

The most consequential rulings by the Republican-appointed majority favour longstanding GOP priorities. For example, on 24th June, 2020, the US Supreme Court overturned the 50 year old decision in Roe v Wade 410 U.S. 113 (1973). This created earth-quaking societal changes throughout America. The landmark decision dismantled 50 years of legal protection for abortion as a federal right and paved way for individual states to curtail or ban outright abortion rights. This judgement was made possible only because of the addition, in 2020, of Justice Amy Coney Barrett, the third appointee of former GOP President, Donald Trump. Trump had vowed to name only Supreme Justices who would reverse the 1973 precedent anchored on the Fourteenth Amendment, to the effect that a person may choose to have an abortion until a foetus becomes viable. This was based on the individual’s right to privacy. Roberta had dissented from the opinion overturning Roe; although he voted with the conservative majority to uphold the disputed Mississippi ban on abortions just after only 15 weeks. Roberts critiqued that the June decision amounted to “a serious jolt to the legal system”.

The Justices who dissented from Roe v Wade have since appeared at some events and criticised the decision in Dobbs v Jackson Women’s Health Organisation (No 19; decided on 24th June, 2022) 597 US (2022). At a 9th US Circuit Judicial conference in Big Sky, Montana, (broadcast on C-SPAN), liberal Justice Elena Kagan implicitly criticised the Dobbs decision. She observed that the court loses public trust when it discards precedent. She maintained that the court cannot presume that people will hold it in high regard; but rather, that a court must earn and retain its legitimacy “by acting like a court; by doing the kinds of things that do not seek to people as political or partisan.” She then warned, “if over time the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”Justice Kagan also; at a live-streamed appearance, from the Temple Emanu-El Streicker Center in New York, struck a similar note, when she said: I think Judges create legitimacy problems for themselves- undermine their legitimacy- when they don’t act so much like courts and when they don’t do things that recognisably law and when they instead stray into places where it looks like they are an extension of the political process or where they are imposing their own personal preferences”.

Chief Justice Roberts, a 2005 appointee of Republican President George W. Bush, has since been busy trenchantly sending off public disaffection and defending the court’ a legitimacy and the entire Judiciary’s integrity. That was why in November 2018, in response to Trump’s denigration of a Judge as an “Obama Judge”, Justice Roberts fired back, “We do not have Obama Judges or Trump Judges, Bush Judges or Clinton Judges.” (To be continued).

FUNTIMES

“My mind don begin tell me say na INEC mark my WAEC, becos no be wetin I write I finally get”. –Anonymous.

THOUGHT FOR WEEK

“Criticism, like rain, should be gentle enough to nourish a man’s growth without destroying his roots”. (Frank A. Clark).