Judge David J. Dreyer: Three examples of quiet judicial courage in Indiana courts

“A judge’s courage is tested when the truth is inconvenient.” — Anonymous

All of us lawyers and judges can remember times when we saw a judge, heard a judge or read a judge’s decision that showed real courage in uneasy circumstances. Today, we are regularly reminded that judges are the constant in a changing world. Unfair attacks, political expediency and deliberate disregard of court rulings seem to be common in important cases. But we lawyers and judges know better. We know firsthand about judges who can rise above distractions, analyze, and exercise discretion fairly and prudently, despite any personal consequences or public opinion. Those judges are willing to make unpopular decisions. Those judges are concerned only with applying the law and not overweighing precedent to find a particular result. Those judges keep quiet when criticized, even unfairly. These are some traits that form a kind of courage that is not loud or theatrical. It is the daily, disciplined choice to be fair, honest, and principled when it would be easier — and sometimes safer — not to be.

In Indiana we are fortunate to have had our own historical examples of quiet judicial courage in law and beyond.

Judge Elisha Egbert and the South Bend fugitive slave case of 1849

The Fugitive Slave Law of 1793 prescribed how Southern slave-owners could recover escaped or “freed” slaves in the free North. The law required the slave-owner to find who they claimed to own and then go to the courts of that state to request them ordered back. In 1847, John Powell and his family of six fled the plantation of John Norris on the banks of the Ohio River in Kentucky. The Underground Railroad took them to southern Michigan, where they settled.

Eventually, Norris led a group of 40 men to track the Powells. When they were found at their home in Michigan, Norris and his party forcefully detained them and set off to take them back to Kentucky. A group of sympathetic locals from Michigan intervened and stopped Norris in South Bend. After a writ of habeas corpus was filed, Judge Elisha Egbert was faced with how to apply the law to escaped slaves.

Most of the cases involving the law related to bounty hunters who would kidnap escaped slaves in the North and take them back South. But the Norris case was a seemingly legitimate slave-owner who was entitled to his remedy under the law. The case was argued by both sides into the night in front of a packed courtroom. Judge Egbert was calm and direct. He read the law and found that Norris had not followed the procedure of applying to the local court before absconding with the Powell family. The Powells were released and eventually lived as free citizens in Michigan. A high-profile and complicated case was made simple and uncomplicated by the quiet courage of one judge who set aside any consideration of what the ruling could cost him.

Sherman Minton and Brown v. Board of Education

The only U.S. Supreme Court justice born in Indiana, Sherman Minton was a veteran of World War I who entered the rough and tumble politics of the 1930s and was a loyal ally of President Franklin Roosevelt. In the 1940s, he was part of Roosevelt’s White House staff and was eventually confirmed to the U.S. Supreme Court in 1949.

With the least seniority, Minton was required by court tradition to state his position and vote first at every case conference to avoid influence by more senior justices. However, one can imagine a level of intimidation having to go first. When Brown v. Board of Education came up the court in 1954, Minton knew that Chief Justice Fred Vinson was against granting certiorari, as well as four other justices. Only four votes were necessary to take the case to a full consideration by the court. Would it be practical to grant certiorari when the majority would rule against it?

Minton’s turn to vote came up first. He voted to take it. The eventual majority opinion overruling Plessy v. Ferguson stands as one of the most historically significant cases in American history. It all started with Justice Minton. Maybe more importantly, he was reportedly an active and guiding force behind the scenes, using his long developed political skills to quietly leverage the final opinion as unanimous — after he was the first justice to vote for it against a seeming majority. But he never was heralded as a hero.

Chief Justice Randall Shepard and lasting improvements

The Indiana legal profession is well-aware of Chief Justice Randall T. Shepard’s career as a judge, writing over 900 opinions. That alone may be sufficient to qualify mention here. But his quiet and steady drive in all areas of the law and larger legal community have distinguished him even more. When Shepard joined the Indiana Supreme Court in 1985, an estimated 93% of all the court’s cases were criminal appeals, leaving little time for consideration of civil law issues. Accordingly, Indiana common law lagged behind regarding important questions of civil discovery, product liability, medical malpractice, contracts and other common problems. In addition, Shepard was personally determined to more actively interpret the Indiana Constitution in the court’s reasoning when appropriate.

None of this was easy. Difficulties with the General Assembly, lawyers and even some colleagues certainly did not make Shepard popular in the media. But he stayed the course. Not only did he bring those much-needed changes, he worked off the bench to make sure Indiana was the first state to adopt the national CLEO program to make law school more attainable for minority, low-income and disadvantaged students. He impacted national and international structural improvements in how law schools educated, how courts became leaders in pro bono service, and countless projects. He was president of the Conference of Chief Justices and the National Center for State Courts, chair of the Appellate Judges Conference of the American Bar Association and chair of the American Bar Association Section of Legal Education and Admissions to the Bar. In 2006, U.S. Supreme Court Chief Justice John Roberts appointed Shepard to serve on the U.S. Judicial Conference Advisory Committee of Civil Rules, the only state court judge to receive such an appointment.

None of that made the front page. But it has had lasting effects on the legal system and the community at large. Shepard retired as the longest-serving chief justice in Indiana history — and a great example of quiet courage.•

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Dreyer, a senior judge, presided in Marion Superior Court from 1997 to 2020. He is a graduate of the University of Notre Dame and Notre Dame Law School. Opinions expressed are those of the author.