My mailbox has been overflowing lately with political flyers. I can’t turn on the television without seeing a steady barrage of Pence vs. Gregg, Mourdock vs. Donnelly or, of course, Obama vs. Romney ads. I’m sure you can relate.
But up the street and around the corner from my Broad Ripple house, a yard sign caught my eye that didn’t involve the usual Democrat versus Republican political rhetoric. This simple, hand-painted sign called for the ouster of Supreme Court Justice Steven David.
I find this rather disjointed grassroots effort to remove a sitting Supreme Court justice from the bench both fascinating and disturbing.
On the one hand, it demonstrates the people exercising their right of free speech, and based on what I know of Justice David, no one would support that more than him. In this issue of Indiana Lawyer, the justice speaks about those who oppose him, saying: “If somebody feels strongly that they don’t like the decision, I would defend until my death their right to have that opinion. As painful as that may be personally, that is who we are” as a country.
As I’m sure most know by now, the decision Justice David refers to is Richard L. Barnes v. State of Indiana, issued by the Supreme Court in 2011. In the case stemming from police response to a domestic violence 911 call, Justice David wrote the majority opinion which held that “there is no right to reasonably resist unlawful entry by police officers.” While protests over the decision from those who felt it contradicted the Fourth Amendment and calls to remove the justice seemed to die down late last year, new life seems to have been breathed into the effort during this campaign season even though statutory changes made by the 2012 Legislature made the decision moot.
Still, public conversation is vital, and regardless of your stance on the issue brought to light through Barnes, it is good to see that the process can work. Judges rule based on their interpretation of the laws and Constitution; citizens voice their concerns if they do not feel those decisions, based on our rule of law, reflect society; and government reacts to effect change, if deemed appropriate. Opinions may not be unanimous, they may not always be correct, but the majority rules.
But on the other hand, the effort raises concerns about the understanding our citizenry has as to the role of a judge. I am certainly not the first to question this. Surveys tend to reveal that society at large knows little about the judiciary. Many people can not name members of their state’s supreme court. They tend to do a bit better with naming U.S. Supreme Court justices, but not significantly better.
Knowing this, it is not surprising that there is a lack of understanding in our society about how judges and justices arrive at the decisions they issue. Of course, I have no way of knowing if those behind this particular retention campaign effort understand that judges must rule using the laws and Constitution. Some have said they feel a line was crossed in this decision, but do they believe that line was crossed due to the interjection of personal or political opinion in the case or because the justices writing for the majority interpreted the law and Constitution differently than their detractors do?
Court-watchers say Justice David’s decisions have been fairly mainstream or middle of the road. Indiana attorneys gave him a favorability rating of 81 percent in the Indiana State Bar Association judicial survey. When Gov. Mitch Daniels chose Justice David to fill a seat on the Supreme Court, he said from him he heard, “the clearest expression of commitment to proper restraint in jurisprudence and deep respect for the boundaries of judicial decision making.” Gov. Daniels said, “He will be a judge who interprets rather than invents our laws.”
I understand that I am “preaching to the choir” when it comes to understanding the role of the judiciary. Regardless of your opinion of this particular judge’s work, or any judge’s work for that matter, it seems supporting the ouster of a judge based on one decision is dangerous. It seems to fly in the face of maintaining an independent judiciary. So is this, as they say, a teaching moment? Is it time for the choir to start singing?