Dreyer: Attacks on judges are also an attack on the rule of law

After 27 years as a state trial court judge, and over 43 years as a licensed attorney, I have seen a lot of cases, and a lot of outcomes.

All of us in the law world can describe matters that were resolved better than others. And all of us can remember rulings that were wrong—even to the point of disliking the judge who made them.

The American system of justice is dispassionate and impersonal. Nobody is above the law, as we often say these days. We are proud of the significant place our system holds in world history because of our legal system. There is nowhere that puts so much power in the hands of ordinary citizens as we do with our juries.

But as we also often see, there can be an unfortunate cost from our free society of laws and democracy.

Recently, an Indianapolis judge was attacked by public officials and others for a criminal sentence with which they disagreed. We have a right to criticize publicly. No one should assume such attacks were not sincere.

But there is a cost to our rule of law when independent good-faith jurists are subject to vehement and vitriolic criticism of their professional judgment.

Under Rule 8.2 (a), our Rules of Professional Conduct tell us lawyers what our boundary is: “A lawyer shall not make a statement that the lawyer knows to be false or with reckless disregard as to its truth or falsity concerning the . . .integrity of a judge . . .”

But others are not so bound, and more importantly, the damage can be done without telling falsehoods.

Publicly shaming a judge for a decision is not necessarily untruthful. The speakers can believe every word they say, and sincerely describe how bad they think the judge is, how the judge is not fit to hold office, and a variety of similar disparaging statements, none of which are contrary to what they truly believe. But the cost outweighs the benefit of such free speech.

On one hand, lawyers have a duty to speak about judges when “a judge has committed a violation of applicable rules of conduct that raises a substantial question as to the judge’s fitness for office.”

On the other hand, a bad decision, or what someone believes to be bad, is not a rule violation. The resulting effect of aggressive judicial attack is traumatic to our legal system and to our society.

Many years ago, a New York lawyer hated judges and publicly said so in a widely published article: Judges, he wrote, are “whores who became madams . . . and I don’t even know the going price.”

After disciplinary proceedings, one judge bemoaned the damage done: “it is difficult to read the article . . . without coming to the conclusion that neither the legal system nor the legal profession possesses integrity.”

Judges call them as they see them, and, fortunately for all of us, they are honest, and almost always right.

But the public does not see it that way. And the blame is on those who take it upon themselves to blindside judges.

Gallup’s annual poll on public confidence in the U.S. Supreme Court showed only 25%, and only 47% in the federal judiciary as a whole—down 20% over two years.

Experts believe this results from many years of multiple political attacks on Supreme Court decisions from a variety of sources.

Judges do not have publicists or press conferences or public relations advisors. The public learns about our legal system from what it hears and reads. When the discourse is hateful, resentful, or disparaging, the public has little other alternative but to lose its confidence in judges, and more dangerously, its belief that our courts are fair and fit.

The National Center of State Courts reports that public confidence in state courts is only 61%. So what about the other 39%? That’s a lot of disenchanted people.

The cost of attacking judges is too high to bear.

As retired federal judge Paul Grimm wrote, “We cannot have our democracy without the Rule of Law. And we cannot have the Rule of Law without the public’s willingness to accept laws and court decisions that they disagree with.”

So what should the angry critics of the Indianapolis judge have done?

First, they should have been sure to remind the public audience that we have courts in which we should all believe.

Secondly, they should have stated their disagreement with the decision, not with the judge as a person.

Finally, they should have left the public with the impression that, although they are dissatisfied, confidence in our judges should not be lessened.

If we do not understand the importance of upholding confidence in our judiciary, we will pay an enormous price.

As Chief Justice John Roberts once wrote, partly quoting Felix Frankfurter and others, “Justice must satisfy the appearance of justice . . . It follows that public perception of judicial integrity is a state interest of the highest order.”•

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Senior Judge David J. Dreyer presided as a judge of the Marion Superior Court from 1997-2020. He is a graduate of the University of Notre Dame and Notre Dame Law School and a former board member of the Indiana Judges Association.