When asked whether the party affiliation of the president or governor who appointed them plays a part in their judicial decision-making, judges respond “no” — that they decide based on facts and the law of the case. But news stories usually identify the party of the person who appointed the judge and, in doing so, suggest to the public that judicial decisions are motivated by politics, not governed by the facts and the law.
For their part, journalists reject the notion that reporting the party affiliation of the judge or appointing official does a disservice to the public. In a recent Washington Post opinion, Ruth Marcus argues that “[i]n a politically salient case, knowing the identity of the president who nominated a particular judge, as well as examining the partisan composition of a three-judge [appellate] panel, is a reliable predictor of outcome.”1 Marcus cited a recent study by Harvard Law School Professor Alma Cohen that concluded “[t]he association between political affiliation and outcomes is far more pervasive than has been recognized by prior research.”2
Regardless of who is right, we have a very real perception problem: Public opinion polls increasingly show that a majority of the public believes that politics influence judges’ decision-making.3 Particularly during a highly polarized election year, this perception problem has serious ramifications, as it occurs in tandem with a significant drop in public trust in the courts (see “The Withering of Public Confidence in the Courts” on page 22) and feeds growing concern that people may not accept or abide by judicial decisions with which they disagree. To wit: Even though federal judges of both major parties rejected 61 of 62 lawsuits challenging the 2020 election, nearly a third of Americans still believe that the 2020 election results were fraudulent.4
Such widespread public rejection of a nearly unanimous judicial result must alarm anyone who believes that the rule of law is essential to maintaining our democratic form of government and the founding principles of our nation. The public’s unwillingness to accept the outcome of judicial decisions they disagree with undermines more than just the integrity of election results — protections of contract and property rights, intellectual property rights, and individual rights and liberties are just as much at risk.
As lawyers and judges, we have not done enough to engage with the public to help them understand the rule of law. We must continually proclaim the message that the rule of law depends on the public’s willingness to accept court rulings as determinative, even when — especially when — rulings are unpopular. At the same time, the rule of law requires government accountability, including the courts. Our system is designed with checks and balances that provide opportunities to effect change through elections, ballot measures, lawful protest, and advocacy. Efforts to educate the public about the rule of law must also include these lawful avenues for reform.
There is much judges can do. The Judicial Conference of the United States recognized in its 2020 Strategic Plan for the Federal Judiciary that “[t]he ability of courts to fulfill their mission and perform their functions is based on the public’s trust and confidence in the judiciary.”5 As Judge Raymond Lohier said in Judicature in 2022, achieving the public’s trust and confidence in judges and the courts requires “a judicial appreciation that there must be a connection — between the public and the . . . [courts], between what the public expects, broadly speaking, and how the Supreme Court and the courts of appeals and the district courts rule, and how we justify or explain our rulings.”6 If judges want to convince the public that they are not acting in a partisan and political manner, what they say in their rulings — and how they say it — matters a lot.
Judge Diane Wood has offered practical advice on this front: “[W]hen [judicial] opinions are being written, judges [should] take great care with their audience. Shorten them, make it clear what principles are being used. Don’t stoop to name calling . . . .”7 Some humility wouldn’t hurt, either. Judges are appointed, not anointed. They must frequently rule in ways that will disappoint or anger a large number of people. They should recognize that and endeavor to explain their rulings in a manner that is respectful of the views of the unprevailing party. It is easier to accept a decision that you disagree with if it is delivered respectfully. Simply put, judicial decisions should generate light, not heat.
That respect also must extend to the way judges treat everyone in the courtroom, and judges can further foster that essential connection with the public through civic education and other opportunities to speak about the work of the courts in nonpartisan settings. Judges also must strive to behave in both their public and private lives in ways that avoid even the appearance of any bias that may affect their decisions. Whether fair or not, when judges act in a way that is merely suggestive of political partisanship, it is noticed, commented upon, and amplified. Ignoring concerns about bias only reinforces the public sense that judges do not feel accountable to anyone, which is corrosive to public trust.
Lawyers and bar associations also have a critical role to play. They must speak out when judges are unfairly attacked and cannot speak on their own behalf. Op-eds, social media posts, and public engagement offer opportunities to explain the role of courts and judges and their critical function in preserving the rule of law, which is essential to the protection of all of our rights and liberties. Lawyers can teach that when a result does not go your way, you may criticize the law or the application of it, but not the judge’s character or intellect. Taking personal invective out of the equation in contentious and high-profile cases does nothing to harm one’s case, but it might go a long way toward reducing public vilification of judges, which has too often led to physical threats and violence.
The Bolch Judicial Institute at Duke Law School is embarking on a collaboration with judges, bar associations, and civic education organizations to work toward restoring public trust and confidence in the judicial system. We hope to address many of these issues, and we welcome your involvement and suggestions. All of us are leaders of a profession whose proper functioning is essential to our democracy. We can do better. We must.
Paul W. Grimmis the David F. Levi Professor of the Practice of Law and Director of the Bolch Judicial Institute at Duke Law School.
