By Judge Benes Z. Aldana (Ret.)
This piece originally appeared in the May 5, 2023, issue of The Judges Journal.
I’ve yet to find a judge or anyone else who disagrees with my opinion that our country is more divided now than at any time since the Civil War. Disagreement is to be expected in a democracy. The problem is how we disagree.
Simple disputes turn into screaming matches. Protests turn into violence. We no longer see someone with a different perspective—we see some thing that must be shouted down and defeated. It was an 18th-century English aristocrat, Lady Mary Wortley Montagu, who said, “Civility costs nothing and buys everything.” But that accounting seems lost on modern society.
I don’t consider this situation to be hopeless, however. And here’s a reason why. On a flight not so long ago, I had the pleasure of meeting a congressman and a congresswoman from opposite political parties. I occupied the middle seat between the two. Appropriately enough, to my left sat the Democrat, to my right the Republican. Though they held very different views on some issues, they were more than cordial with each other.
I asked how they manage to get along so well at a time when insults, conspiracy theories, and a win-at-all-costs mentality are the order of the day in Washington. It turns out that they both are former attorneys who had learned civility from judges who would not tolerate incivility in their courtrooms. Judges taught them the advantages of relating in a civil manner, the necessity of it, even in an adversarial situation.
I believe not only that we can keep teaching that lesson but that we have to.
Our country has a long tradition of honoring, if not always practicing, civil behavior.
At the age of 13, George Washington wrote down 110 maxims he titled “Rules of Civility & Decent Behavior in Company and Conversation.” Many of the admonitions involved table manners: “If you soak bread in the sauce, let it be no more than you put in your mouth at a time and blow not your broth at table but stay till (it) cools of itself.”
But throughout his life, Washington had a habit of putting the points he considered most important at the beginning and end of his writings. The first Rule of Civility he considered worthy of writing down was, “Every action done in company ought to be with some sign of respect to those that are present.” The last: “Labor to keep alive in your breast that little spark of celestial fire called conscience.”
Every course we teach at the National Judicial College is designed to help judges reach and maintain the highest standards of professionalism. That includes cultivating an environment of civility and respect in the courtroom. As a judge, however, you don’t need a lecture to know the rules for civility. They’re already written down.
Decorum, Demeanor, and Communication with Jurors
(A) A judge shall require order and decorum in proceedings before the court.
(B) A judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.
(C) A judge shall not commend or criticize jurors for their verdict other than in a court order or opinion in a proceeding.
Judges also need to be role models for all people who work in the legal system. On the website of the U.S. District Court for the Central District of California, you’ll find a set of Civility and Professionalism Guidelines. They go into great detail on a lawyer’s duties to other counsel in procedures like service of papers and scheduling. I like this list of a Judge’s Duties to Others:
- We will be courteous, respectful, and civil to the attorneys, parties, and witnesses who appear before us. Furthermore, we will use our authority to ensure that all of the attorneys, parties, and witnesses appearing in our courtrooms conduct themselves in a civil manner.
- We will do our best to ensure that court personnel act civilly toward attorneys, parties, and witnesses.
- We will not employ abusive, demeaning, or humiliating language in opinions or in written or oral communications with attorneys, parties, or witnesses.
- We will be punctual in convening all hearings, meetings, and conferences.
- We will make reasonable efforts to decide promptly all matters presented to us for decision.
- While endeavoring to resolve disputes efficiently, we will be aware of the time constraints and pressures imposed on attorneys by the exigencies of litigation practice.
- Above all, we will remember that the court is the servant of the people, and we will approach our duties in this fashion.
In one of his essays for the Federalist Papers, Alexander Hamilton tries to assure his fellow citizens that judges won’t become tyrants under the proposed Constitution. The envisioned judicial branch, he promises, would have “no influence over either the sword (the military) or the purse (tax money).” Judges could basically take no action, could not even get a salary, without cooperation from the executive and legislative branches.
Of course, it takes more than money and weapons to make a justice system. A corrections system can imprison people we find guilty of crimes. But far more court orders, including the garnishment of wages by employers, rely on voluntary compliance.
In most situations, we’re relying on people choosing to comply with our orders. The reason most of them do is simple: They believe the system and our decisions are fair.
Retired Washington State Superior Court Judge T.W. “Chip” Small offers a great example in his book You Are Not a Lawyer Anymore: A Primer for Those Who Want to Be a Good Judge. One of the most difficult decisions a judge may face, he writes, is in a termination-of-parental-rights case.
[I]f the state meets its burden of proof, it will be your duty to declare that these individuals are no longer the parents of their children. Incredibly, those individuals will leave your courtroom accepting the fact that they are no longer the mother and father of their children.
That would not happen, he says, unless the parties viewed the process and the judge making the decision as fair. To convince them, judges have to “sell” their decisions to the losing side. You do that by treating the loser with the same amount of respect you treat the winner, “with even more respect than you are treated,” writes Judge Small.
He’s right. I’ve known hundreds of judges, and the ones who receive the highest marks in evaluations are those who work to make sure that all parties in a case walk away feeling like they were heard and their arguments were considered fairly. Civility and mutual respect are essential precursors to that end. Sadly, not all judges approach their work with the degree of humility Judge Small prescribes.
A few years ago, the Washington Supreme Court suspended a judge for five days without pay after hearing complaints about the judge using the terms “stupid” and “idiot” when talking to litigants. The state’s Commission on Judicial Conduct found that the judge, who handled mostly traffic violations and small claims in a small community, frequently cut off defendants when they tried to speak, belittled them, and didn’t allow them to present evidence. The five-day suspension resulted from a 5–4 decision at the high court. Notably, the four dissenting justices didn’t want the judge absolved; they wanted to impose a harsher, 90-day suspension, as recommended by the Judicial Conduct Commission.
Writing for the minority, Justice Gerry Alexander argued, “Statements by a judge implying that a litigant is an ‘idiot’ or ‘stupid’ and the rendering of other derisive comments about persons who are before the judge is not conduct that engenders respect for the judiciary or provides confidence in the impartiality of the justice system.” In other words, judges who show no respect for those who come before them can hardly expect their court’s authority to be respected.
In 2018, we emailed our National Judicial College alumni an informal survey asking if they thought civility in their courtroom had improved, declined, or stayed the same over the past five years. Of the more than 800 judges who responded, only about 9 percent thought it had improved. The rest felt it had either declined (45 percent) or stayed about the same (46 percent). “There are times when I feel more like a kindergarten teacher than a judge,” wrote one of the judges.
As for the causes of the decline, most comments focused on three potential culprits: politics, TV shows, and certain parties, especially self-represented litigants, who aren’t familiar with courtroom procedures and decorum. By TV shows, they meant arbitration-based courtroom reality shows. The producers of such programs often encourage conflict and argument. It spices up the proceedings. But some judges worry that viewers will think this is normal behavior in a real courtroom.
An especially worrisome program is Judge Judy, hosted by former Manhattan Family Court Judge Judith Sheindlin. The show ceased producing new episodes in 2021 after 25 years on the air. Soon thereafter, a similar vehicle for Judge Sheindlin’s arbitration skills, Judy Justice, premiered on the Amazon Freevee streaming service. Judge Sheindlin is known for aggressive and blunt questioning and for not being shy about expressing her opinion of the parties to a dispute. “When I finish making you look ridiculous, I’m going to start working on her,” she snarls in one episode included in an online compendium of clips from the show.
Whether or not Judge Sheindlin’s belligerence is only an act, many judges don’t appreciate it. One of her persistent critics was Judge Joseph Wapner, a pioneer of the reality TV court show format. He hosted The People’s Court from 1981 to 1993 after a career that included 18 years as a judge of the Los Angeles County Superior Court. In a 2003 interview with a newspaper columnist, Judge Wapner, who died in 2017, said of his onscreen successor:
She is a disgrace to the profession. She does things I don’t think a judge should do. She tells people to shut up. She’s rude. She’s arrogant. She demeans people.
If she does this on purpose, then that’s even worse. Judges need to observe certain standards of conduct. She just doesn’t do it and I resent that. The public is apt to gain the impression that this is how actual judges conduct themselves. It says “judge” on the nameplate on the bench and she’s wearing a robe.
By now, most judges have been involved in virtual hearings. Last year in Philadelphia, we offered judges a class on how best to conduct virtual hearings. One imperative is to remind all participants that the same rules and standards apply to hearings online as hearings in court.
I know of at least one judge who had a party show up to a virtual hearing without pants. Some judges in class said they had noticed a deterioration in manners; distance litigation seems to have given some a license to be rude.
Judges also need to take care that they don’t use technology as a shortcut around their own responsibilities. All parties have the right to be heard during a Zoom, no matter how uncivil they may be acting and no matter how tempting it might be to mute them.
Though it likely has fewer regular viewers than Judge Judy, the Supreme Court of the United States influences many people’s perceptions of proper judicial behavior. Sadly, not all justices have set a good example.
Justice James C. McReynolds, who served from 1914 to 1941, was not only a strident opponent of Franklin Roosevelt’s New Deal. By most accounts, he was also irresponsible and selfish, a grouch, and a bigot. His antisemitism ran so deep that he refused to even speak to the first Jewish member of the court, Louis Brandeis, for the first three years of Brandeis’s tenure. He refused to sit near him during court ceremonies or sign any opinions written by him.
During the 1932 swearing-in ceremony for Justice Benjamin Cardozo, who was also Jewish, McReynolds is said to have ostentatiously read a newspaper and muttered “another one.” Cardozo’s immediate predecessor on the court, Justice Oliver Wendell Holmes Jr., is said to have compared the infighting and hostility among justices during his three decades (1902–1932) on the court to “nine scorpions in a bottle.”
It’s probably good that, with the exception of oral arguments, interactions among justices occur away from public view. But maybe not. Though opposites in politics and judicial philosophies, Justices Antonin Scalia and Ruth Bader Ginsburg were known to be close friends. Current members of the court seem to want to project an air of civility and collegiality, even after bitter disagreements such as the Dobbs v. Jackson Women’s Health Organization decision that reversed Roe v. Wade.
Justice Neil Gorsuch’s book A Republic, If You Can Keep It was partly a plea for civility in society as a whole. At a 2019 event promoting the book, he said that he and his fellow justices may knock heads during legal arguments, but they still eat together in the same dining room: “We sing each other ‘Happy Birthday,’ we flip burgers at the employee cookout. We can disagree during the day but have fun together by night.”
That civility may be genuine, but it’s also irrelevant. The public doesn’t see cookouts. It sees hyper-partisan confirmation battles and votes that appear to inevitably break along party lines.
Last year, Gallup reported that public confidence in the Supreme Court had fallen to its lowest level in nearly 50 years of polling. Only one in four adults said they have “a great deal” or “quite a lot” of confidence in the court. That was down from 36 percent the year before. That poll was taken before the court had handed down its decision in Dobbs. Seeing how other polls have shown that a majority of Americans disagree with that decision, it would come as no surprise if public confidence in the court hit a new low in 2023.
Remember, public confidence matters because if people lose confidence in the fairness of courts and judges, the justice system will lose its authority. No more companies will agree to garnish the wages of deadbeat borrowers. No more unfit parents will accept having their children taken from them.
Here’s more bad news: The public’s confidence in state courts also appears to be sinking. A 2022 survey by the National Center for State Courts found that 60 percent of the public have a great deal or at least some confidence in the state courts. That doesn’t sound that bad. But it was 64 percent the previous year. Worse, when asked how well the phrase “provide equal justice to all” describes state courts, nearly half (49 percent) said either “not well” or “not at all well.” That was 8 percentage points worse than three years previous.
Justices Sonia Sotomayor and Elena Kagan addressed the dangers of a decline in public confidence in the courts during an appearance at a women’s conference at their alma mater, Princeton University, in 2018. The event took place during the especially contentious confirmation of Justice Brett Kavanaugh.
Sounding like Hamilton in the Federalist Papers, Justice Kagan said, “We don’t have an army. We don’t have any money. The only way we get people to do what we say that they should do is because people respect us and respect our fairness.”
With a slew of consequential cases on its docket and a voting majority whose opinions are likely to differ from the majority of Americans, I fear the Supreme Court faces an uphill battle to restore public belief in its fairness. And that is bad news for all of us farther down the judicial food chain.
We can’t control what the majority of the Supreme Court decides. What we can do is what we’ve always been expected to do: Listen carefully and patiently to those who appear before us. Explain our reasoning thoroughly. Show people the respect that our courts depend on for their existence.
“The hardest part of being a judge,” wrote Jackson, Wyoming, Circuit Court Judge Curt A. Haws, “is le...
This piece originally appeared in the May 5, 2023, issue of The Judges Journal. We will be cour...
April’s Question of the Month asked NJC alumni if they believe candidates in judicial elections should be...
The March Question of the Month asked judges how confident they were in their knowledge of hate-crime laws ...
The latest Question of the Month* asked NJC alumni if they believe state courts should be able to rule on t...