In 2004, the CEO of the Massey Coal Company spent three million dollars of his own money to ensure the election of a member of the West Virginia Court of Appeals. It worked. The candidate, Brent Benjamin, was elected.
When it came time for the court to rule on a case involving the Massey company, Judge Benjamin participated in the decision, although he could have recused himself. The judges ruled in favor of Massey, but their decision was overturned by the U. S. Supreme Court.
By a vote of five to four, the Supreme Court found that elected judges were required to withdraw from cases involving big campaign contributions.
I mention this West Virginia case because it was cited by Margaret Marshall in a recent talk at which I was present. She recalled it as one example of what is wrong with the American judicial system.
After 11 years as Chief Justice of the Massachusetts Supreme Judicial Court, Margaret Marshall, at age 70, must retire. This quietly dynamic woman has left an imprint on the public life of Massachusetts that will be long remembered.
Almost inevitably, her reputation will focus on the Goodrich case, in which the court ruled that gay marriage is a civil right. But she did much else to make her stewardship memorable.
If you expect her to go quietly into retirement, you are underestimating her. She has a strong valedictory message about what she considers to be a critical issue facing the country. .
That problem is the condition of our state courts.
In terms of numbers of cases handled, state courts dwarf the federal ones. In 2008, for instance, the latter handled only 325,000 cases, over against the state courts’ 48.5 million (a figure that excludes traffic cases.)
As Justice Marshall sees it, four main “troubling circumstances” prevent the state courts from acting as they should.
First, the courts are underfunded. Overall, states do not provide enough money for courts to carry out their responsibilities. This applies to Massachusetts where the legislature has neglected to supply enough funding for the courts to function properly.
Second, many people do not have access to justice. State courts are where the most vulnerable citizens seek justice and too frequently do not receive it. For example, some courts do not provide translation services or help with functional illiteracy.
Third, the dramatic increase in the number of older Americans means that more people with disabilities will approach the courts and find them impossible to navigate. By 2030, one in five Americans will be over age 65 and a certain number of them will need help that often cannot be found. Too many court buildings already fail to satisfy the requirements of the disability law and thus present obstacles to those who seek justice.
Fourth, to an alarming degree courts have become politicized. This is what disturbs Margaret Marshall most. A shocking fact: In 39 states, some or all of the judges are elected. This means they campaign the way politicians do, raising large amounts of money and becoming beholden to wealthy people.
Fortunately, Massachusetts has always stuck to the appointment of judges rather than their election. That tradition, first championed by John Adams, goes back to the provisions of his ground-breaking state constitution.
Voters in the Commonwealth do elect members of the Governor’s Council but this council neither nominates nor appoints: it simply has the power to ratify or not the governor’s judicial nominees.
In most of the other states, Chambers of Commerce, businesses, and wealthy backers feel free to donate large sums of money to judicial candidates, effectively depriving ordinary citizens and other people of access to justice. Under this regime, “justice is for sale,” says Marshall.
“We are in trouble, deep trouble,” she adds, referring to this politicization of a branch of government that should stay free. After all, Marshall reminds her listeners, courts exist not to serve the body politic but to serve the law and justice.
Given the problems of the courts, what action should citizens take? Margaret Marshall does not provide answers to this question. She wants us to help remedy the plight of the courts but she leaves the methods to us.
For me, one answer was at hand: Write a column about the situation.
Let me suggest a few other actions. You can contact your state senator or representative and ask for the courts in our state to be adequately funded.
You can write letters to publications like this one proclaiming the need for improvements in our courts.
But in most other states the politicization of the courts will call for widespread grassroots organizing. The Tea Party movement may serve as an example of citizens bringing about change. If only this new force on the political front were focused on issues like the reform of the courts, then it too might count as a valued resource.