May 2006

The President's Essay Contest: Putting It into Words: The Judicial Branch and the Four Corners of Freedom

by S. Brooke Taylor

This year's presidential initiative involves the development of a multi-faceted WSBA program of outreach and education to raise the level of understanding about the critical role of the judicial branch in our democracy, and the "four corners of freedom": the rule of law, separation of powers, the doctrine of checks and balances, and judicial independence. I have attempted to engage future lawyers in this discourse by inviting students at our three law schools to submit an essay on this theme, using my October 2005 "President's Corner" column as a starting point. The law schools screened their own entries and passed on the top three for my review.

The winning essay, by Seattle University School of Law third-year student Joanna Plichta, appears below in lieu of my usual monthly offering. Congratulations to Joanna for her winning effort in the first-ever WSBA President's Essay Contest!

Restoring Faith in the Independent Judiciary Through Judge Greer's Story

by Joanna Plichta

As Terri Schiavo lay in the hospital, sustained only by artificial nutrition and hydration, a group of people gathered outside her window. They came to pray, sing hymns, and carry signs berating presiding Circuit Judge George Greer, who ordered Schiavo's feeding tube removed the preceding day. Some of the messages read: "Hey Judge, Who Made You God?" and "Judge Greer Makes Murder Legal in America" while other messages, also aimed at cutting down Greer's judicial integrity and disqualifying his ability to competently sit on the bench, were even more tasteless. The public was not alone in their outrage; various politicians also aligned themselves against Greer, despite the fact that his decision to order Schiavo's tube removed was a constitutional interpretation of the law passed by the Legislature, where the executive branch had an opportunity to veto the law. Greer did not make himself God nor did he make murder legal in America; he merely interpreted the law as it was provided to him by the legislative and executive branches. And yet, what had started as an ordinary trial developed into a year-long spectacle — a sequence of intense legal battles which fueled frenzied media attention and led to public outrage, several high-profile court decisions, and multiple instances of interference into judicial autonomy by various prominent politicians and high-profile executives.

Although the court of appeals consistently found Greer's decisions to be "exceptionally thorough," their exaltation of his ability to function as a reliable judge was overshadowed by the scrutiny voiced by the public, politicians, and executives. The case history alone is a testament to the attempts at intrusion into judicial independence. By March 2005, the Schiavo case history consisted of 14 appeals, dozens of motions and petitions, and five suits brought in Federal District Court. The varying levels of legislative and executive interference included a subpoena by a congressional committee in an attempt to qualify Schiavo for the "witness protection" program and the passage of federal legislation known as the "Palm Sunday Compromise." Tirelessly, politicians and executives interfered with Greer's court orders and publicly announced their disappointment in his decisions — when they were not challenging his decisions through the appeals process, they were busy drafting legislation that countered the effect of his final opinions.

This encroachment on the independence of the judiciary is alarmingly unconstitutional, primarily because the notion of judicial independence is rooted in the "separation of powers" principle. The separation of powers is the division of governmental authority into three branches of government: legislative, executive, and judicial. Each of these branches has specific duties on which neither of the other branches can encroach, except to impose certain checks on the powers of each individual branch.

A clear example of a violation of the separation of powers principle in the Schiavo case involved the Florida Legislature and Florida Governor Jeb Bush. While the Legislature was busy enacting and implementing a multitude of legislations that defied Greer's orders, the governor was actively interfering with Greer's final judicial determination by ordering that Schiavo's feeding tube be reinserted, despite the fact that Greer had ordered it removed. This resulted in an executive order that effectively reversed a properly rendered final judgment, and thereby constituted an unconstitutional encroachment on power that is reserved for the independent judiciary. Legislatures and executives are constitutionally prohibited from interfering with final judicial determinations, because the rule of law implies that government authority may only be exercised in accordance with written laws that were adopted through an established procedure. In other words, objective laws govern our society, not subjective people.

This is not to imply that tension between the executive, legislative, and judicial branches is unnatural; in fact, it is very normal — the idea behind the theory of checks and balances is that each of the three branches of government has the ability to counter the actions of any other branch so that no single branch can control the entire government. But the possibility that any one body can control the others is completely eliminated — just as the possibility that public opinion can be a controlling or a determinative factor in a judicial decision is eliminated.

Under the United States Constitution, the judge's role is to interpret the law and produce reasoned and unbiased legal opinions, not fear that failure to appease the public will result in mass scrutiny of his or her ability to serve on the bench. The Constitution purposely shields judges from public criticism to assure that they do not have to answer to citizens, politicians, or even the President when their holdings are constitutionally substantiated and based in law and fact. And yet, despite the fact that Judge Greer's holdings met this stringent threshold, he was still constantly pressured to consider personal sentiments of the electorate. When he disagreed with the general public's vision of the right-to-die and right-to-live debate, his intelligence and ability to serve as a judge was publicly questioned and legislation was drafted to counter his rulings, whether those decisions were final or not. The disrespectful treatment Judge Greer endured throughout the Schiavo case must be strongly shunned if the independent judiciary is to maintain its credibility.

Lawyers and judges alike should have a legitimate concern for the future of public faith in the independent judiciary. To begin alleviating this concern and curing constitutional impediments, lawyers and judges must reinforce to the public the effectiveness of the judiciary and its role as a key branch of government by speaking at schools, public forums, and community centers. They must tell Judge Greer's story and educate citizens about the importance of maintaining an autonomous judicial branch so that the public understands how the principles of separation of powers, rule of law, and checks and balances function.

By mobilizing, lawyers and judges can begin to help restore public faith in the independent judiciary and thereby ensure that constitutional intent prevails in courtrooms — so that judges' rulings on politically sensitive issues are not automatically undermined, citizens understand the process well enough to support it, and the public adheres to the notion that every judicial voice, including Judge Greer's, must be respected in its appropriate forum if the foundational elements of our democracy are to survive. 

Joanna Plichta is the public service director and future public service counsel at Foster Pepper PLLC, where she heads the firm's community and pro bono legal service programs. Ms. Plichta is currently a third-year law student at Seattle University School of Law and graduates in May. She is the executive editor for the Seattle Journal for Social Justice and an active liaison to the Access to Justice Institute. She is passionate about public-interest law and is dedicated to becoming a public-service leader. Her family emigrated to the United States in 1985 from Gdansk, Poland. She can be reached at plicj@foster.com.

Brooke Taylor may be reached at 360-457-3327 or sbtaylor@plattirwintaylor.com. If you would like to write a letter to the editor on this topic, please e-mail it to letterstotheeditor@wsba.org or mail it to WSBA Bar News, Attn: Letters to the Editor, 2101 Fourth Ave., Ste. 400, Seattle, WA 98121-2330.