Indiana Judges Association: Judging from the mountaintop

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IJA-Dreyer-DavidI have a confession to make. I have always been fond of the wigs that English judges wear. What better way to define the role and independence of the judiciary than to appear oddly physically different? Of course, all British barristers wear wigs, but judges’ wigs are a lot larger, grander and more regal. If judges wore wigs in the United States, there might be a marked increase, I say, in public confidence in our courts. Hopefully, it would not be outweighed by any marked increase in public satire, but it could not be any worse than the judge shows now on daytime TV. The public always needs to understand that courts are serious and judges are different. More importantly, it is necessary to understand why.

We hear a lot these days about “judicial independence,” and how we should pick who our judges are. On one hand, all of us lawyers understand the significance of keeping courts free from outside pressure – from legislatures, other elected officials, and special interests – and ensuring a process that at least appears fair. On the other hand, Americans are suspicious of any power not accountable to the people. According to Federal Judicial Center researchers, this dilemma is as old as the Union. “A belief in judicial independence exists in the United States alongside an equally strong belief in democratic accountability. … Judicial independence means different things to different people. … It is perhaps most important in enabling judges to protect individual rights even in the face of popular opposition.”

But if judges should be “independent,” does that mean they are somehow more special than other people? Politics makes strange bedfellows, but judges cannot even flirt. So, other government branches sometimes see judges as arrogant, aloof or too powerful. In Michigan, for example, legislators have sought to transfer jurisdiction of all lawsuits against the state to its Court of Appeals where more political pressure can presumably be applied. The little secret about judges is that they are no different than anybody, although required to make weighty decisions about everybody. A Broadway play called “The Mountaintop,” is now coming to the rest of the country, including Indianapolis. It is an unsettling portrayal of Dr. Martin Luther King Jr. as a real, conflicted, flawed person, not the historical social justice hero. It means to irk the audience into realizing how the courage to act, and the difficulty, is the same for all of us, no matter who we are.

Yes, I am a person just like anybody else, but my job declares that I am different. Ever since I have been a lawyer, people often treat me apart from others. When I became a judge almost 18 years ago, some of my best friends insisted on calling me “Judge” because they now felt funny calling me “Dave.” Judges are colleagues of fellow attorneys, not supervisors, although judges have a unique obligation and responsibility to run the system. Temper and toughness are not a natural part of my personality. But even I have decided to yell at attorneys (on rare occasion) because it was required to maintain order, professionalism, fairness and enforce the law.

Hence, my attraction to the English wigs. The separation between me and my judicial role would be much easier to manage. I would be seen as the guy with a funny wig, not Dave who made an unpopular call. Since England already uses wigs to define judicial work, what should American judges wear? Here is a list and some thoughts:

• The helmet of the court’s closest National League Football team. Since the NFL is the most lucrative athletic organization in world history, this would probably draw unwanted claims of corporate compromise.

• Baseball cap turned backwards. Although this is an attractive option to inspire the Millennial generation to believe in our legal system, it is probably a net loss of confidence among the general population.

• Bishops miter. Besides risking First Amendment issues regarding religion, it would just look too funny.

• Construction worker hardhat. Considering what judges do in the courtroom, this is clearly the most logical, but may not be taken seriously.

• A tasteful mask. Keeping one’s face hidden may create a good image and an accurate depiction of a truly independent judge. But how would we know what judges are thinking, are they bored, are they amused, are they getting it?

“Judicial independence,” Justice Stephen Breyer once said, “is in part a state of mind, a matter of expectation, habit, and belief among not just judges, lawyers, and legislators, but millions of people.” A 1996 Harris poll showed 84 percent of U.S. citizens are against political influence in court cases. That would indeed total millions of people. The challenge of judges is to rule from the mountaintop, but never leave the village. Only when judges are invisible can there be true judicial independence. In the meantime, what matters is the process – and the goodwill of our profession to keep trying.•


Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.


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  1. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues