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Justice for All: Fighting to Protect the Courts from Attacks

Expert View

Firm Newsletter Spring 2011
By Stephen Zack, President, American Bar Association

Stephen Zack

The 1976 movie “Network” features one of the most memorable scenes of all time when fictional anchor Howard Beale rants, “I’m mad as hell and I’m not going to take it anymore!”

It is time for all Americans to say the same regarding unwarranted attacks on our courts.

A recent move to impeach sitting justices on the Iowa Supreme Court over disagreement with a ruling is wrong-headed and violates the vision our founders laid out when they created the American system of government, with three branches that check each other.  This controversy may be centered in Iowa, but every American should be concerned about its implications. While the legislature and administration are designed to take and adjust to the public pulse, the courts are charged to act only on the law.

The decision in question in Iowa wasn’t even a close one: seven justices holding widely varying viewpoints ruled unanimously on the legal question at stake.


Impeachment of judges is a grave step that is taken when laws have been broken. Making a high-profile ruling on a difficult case, based on an interpretation of the state’s Constitution, in no way qualifies.  Iowans agree. Two new polls show the state’s voters are firmly against such efforts.

What are some better ways Americans can engage with our courts?

This year, I’ve asked the ABA to step up its leadership. The association has formed a Task Force on Preservation of the Justice System that is focused on the backbone of our justice system, state courts. Firm Chairman David Boies and his Proposition 8 co-litigant, Ted Olson, are serving as its chairs

Task Force members have their work cut out for them: the budget situation in the state courts is dire. Reports are rampant that underfunded courts are forcing trial delays, court closures and staff cuts. Judicial emergencies are in place in many areas so that criminal trial deadlines can be extended. The impact on the civil docket is massive, and it threatens the ability of all Americans to resolve disputes within a justice system that is designed to be a model for the world.

Something has to be done. The Task Force is beginning a series of national hearings at which average citizens, corporate leaders, small business owners and others who depend on the courts will discuss how the cuts are affecting their lives and livelihoods. The Task Force held its first public hearing on February 9, 2011, the opening day of the ABA Midyear Meeting in Atlanta. Excerpts from the hearing were reported by The Wall Street Journal, Associated Press and The Atlanta Journal-Constitution, among others. The ABA Journal noted that the hearing “painted a disturbing picture of how courts around the United States are being affected by budget cutbacks as state governments continue to reel from economic woes.”

In addition to identifying recurring problems, the Task Force is looking for model projects and solutions. One clearly winning approach is creating secure, dedicated funding streams for courts. This allows state courts to have continuity in their budgeting, improve response times, and adopt new technology.

The Task Force will release its platform in a report this summer designed to be widely influential in setting the agenda for state court funding reform. Along with crafting the report, the Task Force will build a diverse, national coalition of grassroots support for change.  This is a cause that demands action, and the coalition will help get the bandwagon rolling.

Beyond funding, the ABA is also addressing the political backlash facing many state courts. As leaders in your communities, you can play a role.

First, let your governor and legislators know you back merit selection systems that draw the best candidates for the bench. Once judges are appointed, terms of service that run until a judge reaches a specific age are best. Or, extend the terms as long as possible, such as to 15 years.

Also, support objective measures of judicial performance so that, if there are court races, voters walk in with real information rather than political talking points.  The ABA has model standards that can serve as a guide.

Finally, let your leaders know you are against the judiciary becoming a new political football.  The group that holds the majority opinion one day could be in the minority the next. That’s the whole reason Lady Justice wears a blindfold. We’ve always wanted our courts only to weigh an argument on the facts and the law, not to look at who or how many are on a particular side. And right now our political leaders have so many other important issues to tackle.

All of these moves will return us to the founding vision of the courts as a strong, functioning, co-equal third branch of government. United States Supreme Court Chief Justice John Roberts often describes judges as umpires, charged with “ensuring that everyone plays by the rules.” When unpopular decisions are made in sports, the crowd may boo, just as the public may debate the major issues on which courts rule. But, fans are not allowed to come down from the stands and jump the referee.  Courts - and the judges serving on them - must be afforded the same support and respect.


On August 10th, 2010, BSF Partner Stephen Zack began his one-year term as president of the ABA. His election – which was decided by the ABA’s House of Delegates by unanimous vote on Tuesday, August 4, 2009 – positions Zack as the first Hispanic American president of the Association.

Related Lawyer: Stephen N. Zack