The preamble to the rules of professional conduct speaks to this by
pointing out that a lawyer "is a representative of clients, an officer
of the legal system and a public citizen having special responsibility
for the quality of justice". As such, lawyers "should seek improvement
of the law, access to the legal system, the administration of justice
and the quality of service rendered by the legal profession". The
preamble concludes with the statement that "[l]awyers play a vital role
in the preservation of society. The fulfillment of this role requires an
understanding by lawyers of their relationship to our legal system".
I am certain that you appreciate the importance of the
attorney-client relationship, but one point in the preamble I just cited
may not stand out in your understanding of the new role you are about to
take on: officer of the court. You will be member of the legal
profession, you will be a representative of the justice system, but you
also will be an officer of the court.
In order to faithfully discharge those three duties, as the oath
requires, you should seek to better understand the role of the courts in
our society --- to appreciate the wisdom of the framers in establishing
the judicial branch as a separate and coequal branch of government.
Connecticut's early history included a period when the highest court
in the state was part of the legislative branch. In Connecticut, despite
the incorporation of the doctrine of separation of powers into the U.S.
Constitution, attempts to establish a similar regime in Connecticut
proved costly to some. In 1804, citizen Abraham Bishop promoted a state
Constitution that separated the three branches of government and defined
voting qualifications. Several justices of the peace, the judges of the
day, joined his effort. The response? They were removed from office.
Separation of the judicial function from the legislative function
sounds like a basic civics lesson, but it was a lesson that was not so
basic two hundred years ago. And even today it is not always clear how
to maintain that separation or even what the exact contours of that
separation are – or should be.
Seek to understand why separation of powers is still a matter of
public discourse. You need to be comfortable with the proposition that
separation of powers is not designed to promote governmental efficiency.
Rather, it was adopted to prevent the exercise of arbitrary power by any
one branch. That observation by Justice Jackson fifty years ago was made
as part of his essay on the Supreme Court in the American System of
Government. The accumulation of too much power in any one branch is a
threat to all. Efficiency may have its own cost, and that cost may be of
a constitutional magnitude. Notably, Justice Jackson also opined that
"It is the function of the citizen to keep the government from falling
into error". You – as a citizen and as an officer of the court – may
actually find that your duty to the court and your responsibility as a
public citizen are easily reconciled – if you seek to understand the
role of the courts in our system of government and in our society. As
your understanding deepens, you will find yourself able to not only meet
the standards of the code of professional conduct, but to help to
achieve the ideals it embodies as well.
The doctrines of separation of powers and judicial independence are
closely related concepts. However judicial independence is often
misunderstood. It is not intended for the benefit of judges. It is not a
free pass for judges to do whatever they want without being held
accountable. Rather, judicial independence protects all of us and our
democratic principles. And, as attorneys, you have a special role to
play in protecting judicial independence. You must help us educate your
clients and the public, for ultimately they are the beneficiaries of
these efforts and the victims if we fail. In carrying forth this
obligation, you also strengthen the Executive and Legislative branches,
for only with three independent and vibrant branches does our government
work as the founding fathers intended.
You won’t find the words “judicial independence” in the United States
Constitution. But make no mistake about it: Our forefathers intended
that our nation’s judges be able to make decisions relying only on the
law and facts of a case, not whichever way the prevailing wind happened
to be blowing or on the whim of a monarch. Our forefathers had their
fill of King George III, who had made the colonial judges dependent on
him for their tenure and pay. So while you won’t find the words in our
Constitution, this tenet is implicit in Article III, the “judicial
power” clause. That clause delegates to the judicial branch alone the
power to decide individual cases.
To quote James Madison: “If a declaration of rights was incorporated
into the Constitution, independent tribunals of justice will consider
themselves in a peculiar manner the guardians of those rights; they will
be an impenetrable bulwark against every assumption of power in the
legislative or executive” branch. He added that these tribunals “will be
naturally led to resist every encroachment upon rights expressly
stipulated for in the Constitution by the declaration of rights.”
We have come a long way since then in the development of the
principles of separation of powers and judicial independence. But we
must be ever vigilant not to allow ourselves to take a step back from
those principles because the benefits to our society are too great to
lose. Judges able to take criticism coupled with systemic protections
insuring the independence of the decision making process have led to
some noteworthy advances in our jurisprudence and the protection of the
rights of the people.
Consider, for example, the case of a man accused of kidnapping and
sexually assaulting a young woman in 1963. You know his name: Ernesto
It fell to the U.S. Supreme Court, led by a former governor named
Earl Warren, to rule that the police had violated Miranda’s
constitutional rights, a decision that rewrote this nation’s arrest
procedure. Reaction? You bet. The Warren Court drew the ire of many,
including the John Birch Society, for this ruling and others; there were
“Impeach Earl Warren” bumper stickers and Warren Impeachment kits during
his tenure as chief justice.
This was one jurist, however, who knew his mission. He once said,
“Everything I did in my life that was worthwhile I caught hell for.”
Chief Justice Warren, by the way, was the lightning rod who caught
"hell" for Brown vs. Board of Education.
Or consider federal Judge Frank M. Johnson Jr. You may not know much
about him, so please allow me to briefly summarize from his biography,
which is posted on the Presidential Medal of Freedom website:
In 1956, following the Montgomery bus boycott, Judge Johnson ruled
against segregated city buses and later was the first judge to order
names of qualified African-Americans added to county voting rolls. He
wrote the first statewide school desegregation decree, and outlawed
discrimination in Alabama’s libraries and transportation centers. In
addition, Judge Johnson helped strike down literacy tests and opened
U.S. Route 80 for the Selma-to-Montgomery March.
Well, as you can imagine, Frank Johnson was not the most popular man
in Alabama during these turbulent times. In fact, a former classmate by
the name of George Wallace called him an “integrating, scalawagging,
More seriously, a band of teen-agers burned a cross on his lawn.
Worse still, someone set off a bomb under his mother’s car port.
Someone once asked Judge Johnson why he kept making such unpopular
decisions. He answered, “You can’t intimidate me. If you can be
intimidated, you don’t have any business being a judge.”
Thus, as I said, judges willing to make the decisions based only upon
the law and facts, free from outside influences and pressures advance
our unique concept of freedom and democracy.
That, ladies and gentlemen, is the essence of judicial independence.
It is the Earl Warrens and the Frank Johnsons, and every other federal
and state judge who make courageous decisions every day, oftentimes in
the face of great condemnation.
Once you take your oath it becomes your sworn duty as an officer of
the court to do your part to promote the understanding of our system of
justice, to seek to improve the law, access to the legal system, the
administration of justice and the quality of service rendered by the
profession. If you always remember those concluding words in the
Preamble to the Rules of Professional Responsible, that "[l]awyers play
a vital role in the preservation of society", it will serve you well.
Enough serious talk. In closing, I would urge you simply to savor the
rest of the day with your family and friends. This is a tremendous
accomplishment worth celebrating, and I hope that you do just that
because you certainly have earned every accolade you receive today. On
behalf of the entire Judicial Branch, I congratulate you and wish you
the best of luck in the years to come.