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.)