Legal Profession’s Breakdown in Camaraderie Could Send Wrong Message to Public, Wilkinson Says
John Marshall, the first Chief Justice of the Supreme Court, assembled his court over glasses of Madeira wine and arranged for his colleagues to live at the same hotel. They socialized together, ate together, and discussed the cases before the Court. That sense of camaraderie is “as valuable today as it was in the early 19th century,” said Judge J. Harvie Wilkinson of the United States Court of Appeals for the Fourth Circuit, who spoke April 14 as the recipient of the 2004 Thomas Jefferson Foundation Medal in Law, the University’s highest honor. Wilkinson warned that the growing rancor among those in the legal profession may create the public impression that decisions are made by political animus rather than by law.
“I think the breakdown in the legal profession mirrors the breakdown in the body politic,” Wilkinson said. “The strife outside the judiciary has caused strains within the courts as well.”
Wilkinson, who graduated from the Law School in 1972 and was twice a member of the faculty, was praised by Dean John C. Jeffries Jr. in his introduction as a “master teacher and a prolific scholar.” As a student, Wilkinson took a semester off to run for Congress. After clerking for Justice Lewis F. Powell, he taught at the school from 1973 to 1978, when he became the editorial page editor at the Norfolk Virginian-Pilot. After a brief return to the Law School in 1983, he was named to the Fourth Circuit in 1984.
Wilkinson said his profession’s growing signs of strife were in part the “products of politically charged issues that have landed in the laps of courts.”
New congressional statutes have put more political issues in the judges’ hands, he said, because of the vague language of new laws addressing changing technology and concepts of equality. But with so many congressmen working on legislation, and with give-and-take necessary to get laws passed, it’s not surprising that some laws are less than clear, he added.
But disputes over issues have cut deeper in recent years, he said, citing Supreme Court justices whose dissents are so vigorous that they deny some basic tenets of the law. “Nothing will undermine respect for the law more quickly than this,” he said.
Previously sharp lines between external and internal documents had been drawn in courts, but “this line is beginning to break down.” There have been well-publicized cases of internal communications being aired in two different circuits, in which prevarication or worse has been alleged.
“I understand the reason for some of this stridency,” Wilkinson said. Judges are strong-minded, and discussing capital punishment or affirmative action is not the same as talking about the sports or weather.
Wilkinson said his lecture was meant to be prescriptive to “restore a sense of mutual regard.” Civility today is often misconstrued as a sign of weakness, he lamented.
To help build the culture of legal affection, Wilkinson said courts should be open and transparent; participants should understand the rules of court and believe they will be followed. The staff of the court should not play favorites and should be professional as well.
Wilkinson said it was crucial to dispel the idea that panel combinations are rigged. He said appeals judges should be assigned randomly to panels, and cases should be assigned randomly by computer as well. Circulating draft opinions to the entire court will encourage fidelity to circuit precedence, and judges won’t be blindsided by forthcoming opinions.
Judges should also respect opinions that are in the minority.
“Respect for minority views doesn’t mean the majority sacrifices its convictions,” he said. He suggested the majority could reach decisions in a more narrow or conciliatory fashion in order to bring the third judge on board. “Since when does independence . . . mean that we stop listening and learning from our colleagues?” Wilkinson said the fact that appeals courts operate in panels of three shows Congress intended judges to participate in a give-and-take process. The final product will be better if it reflects different perspectives and a diversity of opinions, Wilkinson added.
Wilkinson also proposed that the courts make more exceptional use of en banc decisions—full-court panels which not only set aside a prior decision of a three-judge panel, but deem it “intolerable.”
“They exact a terribly high cost in collegial relations,” he said, and should be used sparingly.
Judges should also compliment their colleagues’ efforts if they deserve it, whether or not they reach the same conclusions.
Wilkinson said it was fair to ask whether a positive relationship among judges and lawyers is a good thing, since law is often used to resolve a sharp collision of differences, and the rights of litigants may be best advanced by a clash of personality and ideas.
He said he was not advancing the idea that sharp differences should be submerged, but that the more diverse our views, “the more necessary it is for a culture of personal affection to take hold.”
Americans are “in need of a sense of common destiny,” Wilkinson
said, an issue that has hit home for him in the days since September
11. “The enemies of our country are not drawing fine distinctions
among us.” Animosity has no place when the threat has become
so great, he concluded.
• Reported by M. Wood