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Chinn: Why The Indiana Supreme Court Matters

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iba-chinn-scottThe profession and the citizenry have been blessed with a great Supreme Court in Indiana over the past several decades. There are several reasons for that, and several reasons why it matters.

Our Supreme Court Justices are smart and hard-working. All outward appearances demonstrate that our Justices take time to consider their opinions and the effects of their words. Agree or disagree with an outcome, it is a rare case that finds lawyers kvetching about Indiana Supreme Court opinions being poorly written or reasoned. As practitioners we gain stability in that.

Being appointed to the Court is a political process, although less so in Indiana than in other places. Even so, there is no way to “count noses” on the Indiana Supreme Court in a case with political implications as has become the inevitable practice in analyzing cases pending before the U.S. Supreme Court, for example. Our citizenry benefits from that sense that our Court is not highly politicized.

And think about how dignified our Court is. One supreme court in a sister state is making headlines about infighting – both verbally and physically. Ours couldn’t be more different, and we benefit from the esteem the citizenry can hold for our Court. And we lawyers don’t waste gossiping about the drama and worrying about its effects.

The Court’s penchant toward civility extends beyond the confines of the Justices’ conference table to oral advocates as well. Although most lawyers don’t argue cases or watch them being argued before the Indiana Supreme Court, as one who has and does, I can tell you first hand that the Justices treat advocates respectfully and engage in probing but constructive dialogue with advocates as part of an exercise in high-level legal problem solving. Unlike the practices in some other courts outside our borders, there are no mean-spirited, demeaning or ostentatiously rhetorical questions in our Court.

Finally, the Court and its Justices are connected to lawyers and the profession in many significant ways. As just one example, many of the Justices have been active participants in IndyBar meetings of members, committees, events (like Bench-Bar), and other activities. And former Chief Justice Randall T. Shepard’s initiation of the Indiana Conference for Legal Education Opportunity (ICLEO) has helped hundreds of students with diverse backgrounds prepare for law school and life. Similarly, Justice Frank Sullivan’s work to improve the opportunities for minorities in the judicial system has drawn award-winning recognition from the American Bar Association.

I mention former Chief Justice Shepard and Justice Sullivan, because with the former having already left and the recent announcement that the latter is leaving the Court, this is literally a time of change. What I trust and feel confident won’t change is the Court’s orientation toward the citizenry and the bar. We congratulate and wish well IndyBar member and newly appointed Justice Mark Massa, who comes to the Court from the perspective of a practicing lawyer—a quality not resident in an appointment to the Court in some time.

Finally, even as I extol the virtues of the Indiana Supreme Court, let me add one deficiency, which the Court itself cannot remedy. It is the obvious point that there remains no female Justice on the Court. In my view, and in light of the positive qualities I reviewed earlier, the only serious blemish the Court displays is this lack of gender diversity. I realize that raising that matter necessarily provokes a little controversy—probably more about the process than about my assertion that gender diversity on the Court is desirable. But as a thought exercise, and realizing that this is in no way the only issue that the Court could benefit from a female justice’s perspective, imagine that some issue connected to the highly charged national debate about funding for contraception came before the Indiana Supreme Court. Now imagine that, reminiscent of the Congressional committee episode on the same subject several weeks ago, there is no female voice on the Court to ask questions of the advocates and speak to the issues in the Justices’ conference on the case. While that might not in itself undo the Court’s reputation and good works, it would be seem genuinely awkward to enough people that it would undermine at least a little of the positive feeling that most of us otherwise have about the Court. That’s because to so many of us, the Court matters.•

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  1. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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