{"id":4319,"date":"2004-04-19T13:30:41","date_gmt":"2004-04-19T17:30:41","guid":{"rendered":"http:\/\/blogs.law.harvard.edu\/formerlyknownas\/2004\/04\/19\/some-monday-inspiration-on-co"},"modified":"2011-08-05T14:58:51","modified_gmt":"2011-08-05T18:58:51","slug":"some-monday-inspiration-on-courts-fairness-liberty","status":"publish","type":"post","link":"https:\/\/archive.blogs.harvard.edu\/ethicalesq\/2004\/04\/19\/some-monday-inspiration-on-courts-fairness-liberty\/","title":{"rendered":"Some Monday Inspiration (on courts, fairness, liberty)"},"content":{"rendered":"

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Yesterday evening, I was lucky enough to find an inspiring speech posted on the <\/FONT>SelfHelpSupport<\/EM>.org<\/FONT><\/FONT><\/A> website.  It’s called <\/FONT>A Court and a Judiciary As Good As its Promise<\/EM><\/A><\/FONT>, and was given by Chief Judge Kevin S. Burke<\/A> of Minneapolis, MN, upon acceptance of the William Rehnquist Award in November, 2003.  Judge Burke has gleaned wisdom from some great Americans, and woven it into a plea that judges and lawyers use “the decisions we make day in and day” to “affirm the public’s faith in the strength of democracy.”<\/FONT><\/DIV>
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\"gavel  Judge Burke asks for feedback on the speech, which deserves to be read in full (as do many of the sources cited).  Here are some key points in the speech:<\/FONT><\/DIV>
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“Today the dissatisfaction with the administration of justice<\/STRONG> is at a level which none of us should tolerate or accept for it threatens our democracy<\/STRONG> as much or more than any terrorist.”<\/FONT><\/DIV>
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Citing, Roscoe Pound’s <\/FONT>The Causes of Popular Dissatisfaction with the Administration of Justice<\/EM><\/FONT><\/A>, Judge Burke notes that a major factor that contributed to this dissatisfaction  <\/SPAN><\/FONT><\/FONT><\/DIV>
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“was political jealousy the other branches of government have with the judiciary due to the doctrine that courts have the final say in what the constitutional law is in our nation . . . . <\/SPAN>Unfortunately, some political leaders are too easily prone to speak of judicial tyranny when there is disagreement with the outcome of a case.<\/FONT><\/SPAN><\/DIV><\/BLOCKQUOTE>
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                                                                                                                                   \"podiumS\"<\/FONT><\/SPAN><\/DIV>
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<\/FONT><\/SPAN> <\/DIV>
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“Pound identified a third cause of dissatisfaction which he described as the sporting theory of justice.  <\/SPAN>The sporting theory of justice<\/STRONG> is the view that essentially the legal process is two modern gladiators in a pitted war, with the role of the judge to be simply a referee for the combat.  <\/SPAN>Even today the sporting theory of justice is so rooted in the legal profession in that many of us take it for a fundamental legal tenet.”  <\/SPAN><\/FONT><\/SPAN><\/DIV>
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“<\/SPAN>Pound argued that the sporting theory of justice disfigures our judicial administration at every point.<\/STRONG>  <\/SPAN>It leads the most conscientious judge to feel that he or she is merely to decide the contest, as attorneys present it, according to the rules of the game, and not to search independently for truth and justice.  <\/SPAN>It leads attorneys to forget that they are officers of the court and to deal with the rules of law and procedure exactly as the professional football coach deals with the rules of the sport.” <\/FONT><\/SPAN><\/DIV><\/BLOCKQUOTE>
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“We need to maintain perspective. <\/FONT><\/SPAN>Our nation has always been critical of the judiciary.”<\/FONT>  [Burke gives examples such as impeachment movements against Chief Justices Marshall and Warren, billboards in the 1970’s against Justice William Douglas, and Teddy Roosevelt’s claim a banana had more backbone than Oliver Wendall Holmes.]  <\/FONT><\/FONT><\/SPAN><\/SPAN><\/SPAN><\/DIV>
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<\/SPAN><\/SPAN><\/SPAN> <\/DIV>
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<\/SPAN><\/SPAN><\/SPAN>\"vote  “A factor that contributes to our generation’s cause of popular dissatisfaction with the administration of justice is the way we conduct public debate on the issues of our time.  <\/SPAN>Regrettably too often the current method of policy disagreement is to take the other guy’s idea, mischaracterize it and announce your profound disagreement and outrage<\/STRONG>.”  <\/SPAN><\/FONT><\/FONT><\/SPAN><\/SPAN><\/SPAN><\/DIV>
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<\/SPAN><\/FONT><\/FONT><\/SPAN><\/SPAN><\/SPAN> <\/DIV>
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<\/SPAN><\/FONT><\/FONT><\/SPAN><\/SPAN><\/SPAN>In his The Spirit of Liberty<\/A> speech in 1944, “Learned Hand<\/A> articulated a vision of justice and liberty that — despite our healthy and legitimate differences about how justice should be delivered — calls to mind some of our highest aspirations.  <\/SPAN>On <\/SPAN>May 21, 1944<\/SPAN>, when the world faced many of the same kinds of challenges we face today, he asked: What, then, is the spirit of liberty? I cannot define it; I can only tell you my own faith: <\/FONT><\/FONT><\/SPAN><\/SPAN><\/SPAN><\/SPAN><\/SPAN><\/SPAN><\/FONT><\/FONT><\/SPAN><\/SPAN><\/SPAN><\/SPAN> <\/DIV>
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