October 2, 2025 • 58 mins
Professor Ron Rotunda wrote seminal law books that are still used in law schools across the country and was the author of over 500 law review articles and other legal publications. These books and articles have been cited more than 2000 times by law reviews, by state and federal courts at every level, by the U.S. Supreme Court, and by foreign courts in Europe, Africa, Asia, and South America. He was also a member of the Federalist Society’s Professional Responsibility & Legal Education Practice Group. Each year, the Practice Group holds an annual FedSoc Forum in his honor to discuss pressing issues and trends in legal culture.
Join us for the 2025 installment in that series, where the Honorable G. Barry Anderson will, in a discussion moderated by Professor Michael McGinniss, offer his insights about judicial independence and the rule of law, and the role of lawyers in supporting the rule of law. He will discuss how such support can be well demonstrated to clients when litigation does not turn out as they had hoped. He will also address systems of judicial selection and their impacts on the independence and impartiality of the judiciary.
Featuring:
Hon. Barry Anderson, Associate Justice, Minnesota Supreme Court (ret.)
(Moderator) Prof. Michael S. McGinniss, Professor of Law and J. Philip Johnson Faculty Fellow, University of North Dakota School of Law
Join us for the 2025 installment in that series, where the Honorable G. Barry Anderson will, in a discussion moderated by Professor Michael McGinniss, offer his insights about judicial independence and the rule of law, and the role of lawyers in supporting the rule of law. He will discuss how such support can be well demonstrated to clients when litigation does not turn out as they had hoped. He will also address systems of judicial selection and their impacts on the independence and impartiality of the judiciary.
Featuring:
Hon. Barry Anderson, Associate Justice, Minnesota Supreme Court (ret.)
(Moderator) Prof. Michael S. McGinniss, Professor of Law and J. Philip Johnson Faculty Fellow, University of North Dakota School of Law
Mark as Played
Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Speaker 1 (00:02):
Welcome to FEDSOC Forums, a podcast of the Federal Society's
Practice Groups. I'm Ny kas Merrick, Vice President and Director
of Practice.
Speaker 2 (00:08):
Groups at the Federal Society.
Speaker 1 (00:10):
For exclusive access to live recordings of fedsock Forum programs,
become a Federal Society member today at fedsoc dot org.
Speaker 3 (00:18):
Hello and welcome this FEDSOC Forum webinar call today September
twenty fourth, twenty twenty five. We're delighted to host the
twenty twenty five Ron Rotunda Memorial Webinar, which this year
will focus on judicial independence and the rule of law.
Where we've been, where we're going, and what to do
about it. My name is Kayla Kleist, and I'm Deputy
Director of Practice Groups here at the Federalist Society. As always,
(00:40):
please note that all expressions of opinion of those are
the experts on today's program, as the Federalist Society takes
no position on particular legal or public policy issues. Now,
in the interest of time, we'll keep your introduction of
our guest day brief, certainly more brief than their distinguished
careers would deserve, so I highly recommend that, if you're interested,
you check out their impressive full bios at fedsock dot org. Today,
(01:03):
we are fortunate to have with us as our moderator,
Professor Michael McGinnis, who is a professor of law and
the J. Phillip Johnson Facley Fellow at the University of
North Dakota School of Law, where you joined the faculty
in twenty ten and served as dean from twenty nineteen
to twenty twenty two. Freessor mcguinness's research and scholarship interests
include lawyer and judicial ethics, constitutional law, especially First Amendment,
(01:24):
separation of powers and federalism, and cultural challenges faced by
conservatives and law schools and the legal profession. Before joining
the Legal Academy, Professor McGinnis served for twelve years as
discipline and counsel for the Supreme Court of Delaware. And
I'll leave it to him to introduce our other speaker
for the day. A last note before I get off
your screens, if you have any questions throughout the program,
please do submit them by the question answer feature likely
(01:46):
find out the bottom museum screen so they'll be accessible
we get to that portion of today's webinar, I'll ask
that all questions submitted there a pertain to this discussion
and b and with the question mark but that thank
you all for joining us today. Fress McGinnis, the floor
is yours.
Speaker 4 (02:00):
Thank you, Kayla, and it's an honor to be here
today to moderate this year's Ron Retunded Memorial webinar. He
was an amazing scholar, amazing teacher. He wrote semnal law
books that are still used in law schools across the
country and was the author of over five hundred law
review articles, astonishing and other legal publications that have been
(02:20):
cited more than two thousand times by law reviews, by
state and federal courts at every level, by the US
Supreme Court, and around the world. He was also a
member of the Federal Society's Practice Group on Professional Responsibility
and Legal Education, and each year we hold an annual
forum in his honor discuss pressing issues and trends in
legal culture. I also have a personal memory from Professor
(02:44):
Rotundo over the years of memories. He was actually a
great scholar while I was still in law school. The
fact of my constitutional law hornbook has Professor Rotunda's name
on it, and I still remember that how effective that
was in helping me through those courses, but also over
the years professional responsibility circles, be able to see and
talk with him at ABA meetings and discuss issues, and
(03:05):
just an amazing man, an amazing person, and so it's
a delight to be here to participate in this honoring event.
So joining us for the twenty twenty five installment of
the series will be the Honorable G. Barry Anderson, and
he's going to offer his insights on judicial independence and
the rule of law, and the role of lawyers in
supporting the rule of law. He will discuss how such
(03:28):
support can be well demonstrated to clients when litigation does
not go as they hoped. And also he will also
address systems of judicial selection and their impacts on the
independence and am partiality of the judiciary. When we introduce
Justice Anderson, to give you some background, a very brief
about his bios, impressive and credible. Nineteen seventy sixth graduate
(03:49):
of Gustavus Adolphus College in Saint Peter, Minnesota, and a
nineteen seventy nine graduate of the University of Minnesota Law School.
He was a member of the Minnesota Court of Appeals
from August of ninety eight until his appointment to the
Minnesota Supreme Court. He joined the Court in October of
two thousand and four and retired from the Court in May.
Speaker 2 (04:06):
Of last year.
Speaker 4 (04:08):
Prior to his judicial service, he practiced law in Fairmont
and Hutchinson was a partner in the law firm of Arnold,
Anderson and Dove. His civil trial experience includes personal injury
and mechanically litigation, and he also served as the city
attorney of Hutchinson for over a decade so. His background
also includes substantial public service as a board member and
chair of a variety of community organizations, including service clubs,
(04:31):
task forces, and a local public access channel, as well
as a wide variety of other community activities. He served
several terms on the Minnesota Judicial Council, the principal administrative
body for the Minnesota Judicial branch. He also helped organize
and served as a member of the Minnesota Citizens Commission
for the Preservation of an Impartial Judiciary, chaired by former
(04:52):
Minnesota Governor Albert h Q. The Commission considered issues relating
to judicial selection, independent an impartiality. After Justice Andred has
presented his remarks, we'll have an opportunity for what I
believe will be a very engaging question and answer time.
So please be thinking about your questions as we go
(05:12):
through the presentation and put them in the Q and A,
and we'll take a look at them and be happy
to discuss them.
Speaker 2 (05:18):
So with that we begin, Justice Anderson.
Speaker 5 (05:22):
So much for that kind introduction, and I'm delighted to
be with all of you today to talk about some of.
Speaker 2 (05:27):
These rule of law issues.
Speaker 5 (05:29):
I want to see a word of a Professor Rotunda
in whose memory we conduct this program. I had the
privilege of serving with him as a moderator on a
panel that he happened to be with I happened to
be on topics involving legal ethics, and as the introduction noted,
Professor Rotunda's textbook on legal ethics is still available and
(05:51):
still used even though he passed away a few years ago.
But my principal memory from that experience was retaining Professor
Rotunda was in making some important legal points for the
audience to consider. Regrettably, I lack Professor Rotunda's both his
facility with the technology and I'm not nearly as entertaining,
(06:14):
But we're going to try to manage both of those
problems as we work our way through some rule of
law issues. So let's get right to it and talk
a little bit about some roots to the or to
the rule of law that we're going to be talking
about today. So next slide, please, next slide. We begin
(06:37):
at the beginning, always a good place to start. When
ordinary citizens think about the rule of law, they probably
think about it in terms of a rule book, a
volume of statutes that explain what it is they're supposed
to do and how they're supposed.
Speaker 2 (06:55):
To do it.
Speaker 5 (06:56):
And those kinds of rule books date back thousands of years.
Most of us are familiar with the Hammer Robbie Code,
which is probably about eighteen hundred BC, but you can
find scraps of similar codes going back much earlier than that,
and can back back to ancient Chinese law codes. And
these codes do in fact set out law. There's contract law,
(07:19):
how we should support or how residents should support widows,
crimes are all mentioned, and you can find lots of
detail in these codes. One example that I often cite
for those lawyers who do medical malpractice work, either plenty
or defense, Hammer Robbie's code actually addresses one of those issues.
(07:44):
For example, if a physician operates on a person of
higher standing social standing than the physician and the patient dies.
The penalty is to remove the physician's hand. On balance,
I think i'd prefer malpractice insurance. But these codes are
our first effort. But one of the things that characterizes
(08:04):
these codes that are very different than the rule of
law as we understand it, is it is a top
down arrangement. In other words, the king the rule. The
leader says these are what the rules are, and if
the rules become inconvenient, the king changes the rules, or
abolishes the rules, or ignores the rules. And this is
(08:28):
a very different framework than we are used to. Next slide.
Here you have a photo of what that Hammurabi code
looks like, and also some of the commentary that I
mentioned here about its top down format. It is surprising
how much of that ancient history we've preserved. Next slide,
(08:51):
So let's talk about how we define the rule of law.
And here I find the work of a legal scholar.
We actually legal philosopher Brian Tamanaha to be very useful.
And I'm not saying this is the only definition, may
not even be the best definition, but for purposes of
our conversation today, we're going to work off of this
particular framework. Rules that are stated in advanced rules that
(09:13):
are known and accessible, and a provision for access to
a fair and independent judiciary to enforce and reject application
of the rules, and most importantly, keeping in mind what
we had to say about hammer Abe and his cousins,
rules that restrict both the sovereign and the citizen. Now,
I want to say a word about the independent judiciary concept.
Today I'm talking to lawyers, and for lawyers, when they
(09:37):
see an independent.
Speaker 2 (09:38):
Judiciary, they know what that means.
Speaker 5 (09:41):
They know that an independent judiciary incorporates and includes the
concept of an impartial judiciary. When you talk to ordinary
members of the public, it's sometimes a different story, and
they look at an independent judiciary and they say to
them ourselves independent from who or from what. So my
(10:05):
advice to all of us when we go out and
talk about the rule of law, and I'd.
Speaker 2 (10:09):
Be willing to bat many of you.
Speaker 5 (10:10):
In the current culture and environment that we find ourselves
in and have been in for a number of years,
you probably get invitations to speak about what does it
mean to talk about the rule of law.
Speaker 2 (10:22):
I recommend.
Speaker 5 (10:25):
Modifying some of what you see here and talking about
a fair and impartial judiciary because We all understand that,
and we all want that when we walk into a courtroom,
we want the judge, whoever he or she is, to
be fair and impartial. So that would be the focus
I think we should have instead of talking about independence.
(10:45):
Lawyers are going to have to train themselves to not
do that next line.
Speaker 2 (10:51):
So then we.
Speaker 5 (10:52):
Turn to you know, what is the law and for
us in our environment, we want to talk about American law. Now,
let's talk a little bit about constitutional law generally. When
our Constitution was adopted in seventeen eighty seven, actually formally ratified,
(11:18):
Rhode Island was the last state to ratify it. When
it was formally ratified in seventeen eighty eight and became law.
It contains this provision supremacy clause of the Constitution, which
is interesting. But what's interesting about it is how unusual
it was. And why do I say it was unusual.
Let's talk a little bit about how how the Constitution
(11:41):
came to be. As we all know, there's Constitution Convention
in Philadelphia, Pennsylvania, Madison, Hamilton j. Many other founders are present,
arguing about a variety of different provisions, but they include
this provision in the Constitution And what's interesting about this
is that they them, say Elves, were actually citizens of
(12:03):
different states. Madison of Virginia, Hamilton of New York j
I think was also New York. And yet they agreed
to incent to the Convention and sent the work from
the Convention to the several states for ratification. Another interesting
feature there is the fact that it is ratified by
the citizens. It did not go to the legislators. It
(12:26):
went to separate meetings designed to ratify the Constitution. Again,
what does the Constitution start with?
Speaker 2 (12:35):
We the people? We know that.
Speaker 5 (12:38):
But this is really groundbreaking work that was done in Philadelphia, Pennsylvania.
The Constitution itself was recognized as a groundbreaking document by
others of that era. For example, there were a number
of countries in South Dakota that adopted South Dakota South America.
(13:00):
Maybe South Dakota did too, I guess we'll leave that aside.
But the South America, there were countries in South America
that adopted the Constitution looked very adopted constitutions looked very
much like the United States constitutions. Soviet Union, although it
had other positive provisions, had three separate constitutions, all of
which bought least some similarity to what we know as
(13:23):
our constitution, and yet almost all of those efforts failed.
Our constitution has survived. The rule of law that enforces
the Constitution has survived. And then the question then becomes why.
And that's a really interesting question. Let's go to the
next slide, and one of the reasons why it survives
(13:48):
is that there were other factors at work to the
rule of law. Then just simply a bunch of mostly
smart people show up after Constitution released it on the
world and say here we go. There were other things
that were in the background of all of this. We
(14:10):
talked a little bit here about British common law, the
Petition of Right, the English Bill of Rights, a lot
of other provisions that you could mention. Declaration of rights
from multiple states, much multiple colonies, i should say, because
they were colonies before they were states, and then colonial experimentation,
(14:35):
and keep in mind that we had one hundred years
of experience in governing ourselves. Because the English King Great
Britain was a long ways away. Instructions might be sent
to the leaders of the various colonies. Whether they were
followed or not wasn't always clear, and in the end
(14:58):
Americans had their own courts and their own opportunities uh
to uh to experiment with leadership, and they were more
than willing to do that.
Speaker 2 (15:12):
Uh.
Speaker 5 (15:12):
You know, I think we should mention here, and the
slide does a couple of other things.
Speaker 2 (15:18):
Uh.
Speaker 5 (15:18):
There were philosophical principles that were at work here in
a way in which was unusual separation of powers, which
we'll talk a little bit more about.
Speaker 2 (15:26):
In a bit.
Speaker 5 (15:27):
And then the Declaration of Independence. Big fight among academics
in a variety of formats about the Declaration of Independence
and whether it should be in fact viewed as a
founding document or if it's simply that a declaration of independence.
And I would Lincoln on this Lincoln Lincoln very much
treats the Declaration of Independence as not only an important,
(15:48):
you know, document, uh, with equal standing with Constitution some respects.
I think you could argue he elevates it that it's
a declaration of principles that aren't necessarily followed, principles of
human equality, for example, because the Constitution itself was an
imperfect document and people are imperfect. But it is nonetheless
(16:11):
a declaration of those principles. He writes separately in a
fragment that that we have that we found post his death,
he writes. He writes of the apple of Gold being
the UH Declaration framed in the silver that is the
(16:36):
the Constitution. So as a practical matter, I think we
have to view it as a founding level document, even
if there's some argument about how effective it is, and
of course individual states.
Speaker 2 (16:46):
Had their own.
Speaker 5 (16:49):
Their own provisions there as well. Let's go to the next.
Speaker 2 (16:53):
Slide, So let's talk briefly.
Speaker 5 (17:00):
I gave I've given longer expositions of the Magna Carta,
but let's talk briefly about it, because I think it
does help explain some of our origin story here. But
let me begin with a word of warning about the
Magna Carta. Again, this is another topic that academics fight about. Well,
we could have the professor talk about Dean and Professor
(17:23):
McGinnis talk about these fights, but then this would turn
this forty five minute to an hour podcast into several hours.
So we'll just cover it briefly here to note that
there's a pretty good argument that we overdo the comparisons
to the Magna Carta. King John reputitated, repudiated almost immediately
and died soon after it was an intra elite argument.
(17:44):
Nobody was asking the shop owners and the homeless on
the streets what they thought about how power should be
divided divided among the powerful. And although it makes reference
to judgment by peers, they are talking about ordinary citizens,
they're talking about the elites of that time. And there
(18:05):
are also some provisions that are frankly pretty hair raising
provision limiting the rights of women to testify, and frankly
anti Semitic language dealing with the ability of Jews to
collect some debts from underage debtors, and some practical of
vice about fish traps that probably isn't much used to
us now. But having said all of that, it's a
(18:26):
remarkable document, and in many respects the Americans make more
use of it than the Bridge do, which is why
I mention it here. Next line, so Manga Karta has
it's of course, is a British document celebrating about it's
(18:47):
eight hundred and fiftieth anniversary or thereabouts. But in the
United States it's treated as the first written limitation on
the power of the ruler and influences what we we
come to talk about checks and balances and separation of
powers and once again in trines the rule of law.
(19:08):
Even leaders are bound by the law next slide. And
we have not hesitated to cite it. The Supreme Court
cited it over one hundred and seventy times. You see
there a variety of issues that have been addressed by
the United States Supreme Court. And when I talk about
(19:30):
it being something that is really rooted in American legal tradition,
in a way in which I would argue, it's not
even rooted in the British legal tradition, although certainly regarded
as significant. In about nineteen fifty seven, there had been
no formal monument that had been created to the Magna
Carta at a running meet where it was signed and
(19:52):
such a monument. And I think I have the year right,
maybe fifty six to fifty seven in there somewhere. I
was three at the time, and I wasn't paying much
attention to that, but that's what I that's what I read. Anyway,
It was actually funded by the American Bar Association. Is
the American Bar Association. It puts up that permanent memorial
to the Magna Carta at running mead, and not the British.
Speaker 2 (20:13):
Solicitors or whatever.
Speaker 5 (20:14):
So so when I say we found it to be
more significant in some respects than the Brits.
Speaker 2 (20:18):
That's an example of that.
Speaker 5 (20:21):
Next slide, uh And this gives you some idea of
of where and I'm particularly I want to particularly credit
professor David Schulz from ham In University for this slide,
because I think it's a It does a pretty good
job of laying out where we have principles that and
(20:41):
how we trace them back and and and to h
and to the Magna Carta. Now when we talk about
origin stories and here I want to go into a
little more detail about the rule of law, custom, tradition
and norms are important in a way in which written documents,
(21:03):
while they're relevant and interesting and useful, are also important.
French philosopher, lawyer author Tolkville makes a visit to the
United States and writes a two volume set of observations
about what he saw here sort of cabin together as
democracy in America. And one of the stories he tells
(21:27):
in this book, or actually two books published several years apart,
is about observing civil journal civil jury trials in a well,
I should say it was more than civils civil and criminal,
but jury trials in a rural part of America.
Speaker 2 (21:44):
And you know, this was in an era.
Speaker 5 (21:46):
In which judges and lawyers travel together, arrive in town,
the lawyers would be retained to deal with particular legal issues.
Cases would be tried before a jury of their peers,
Judgments would be rendered, the judgments would be followed, and
then the judges and lawyers would pick up and move
on to the next time. This is exactly what Lincoln's
(22:06):
law practice looked like in his early days. And actually
David Davis, who was often a judge in these proceedings,
was part of this traveling parade, and topfl found this remarkable,
the adherence to the rule of law. And there are
other observations that he made that were pretty significant. And
one of the reasons why when we talk about Tokville
and I think he's particularly useful here is because he
(22:30):
says he makes these observations. But if you know his history,
his great grandfather was.
Speaker 2 (22:39):
The lawyer.
Speaker 5 (22:41):
Designated to defend.
Speaker 2 (22:46):
Louis the sixteenth and ultimately both his.
Speaker 5 (22:49):
Great grandfather and Louis the sixteenth are executed by the
French revolutionaries. The American experience of the rule of law
is something very different. And when you don't have of law,
you then have the potential for for these these kinds
of tragedies. I I actually had a brief experience with
(23:14):
a with a French general who came to our court
one day and along with some others from the National
Defense Institute, and asks the question about what is it
you know, if the if the government loses a criminal
trial and the defendant's not guilty found not guilty, how
often does the government appeal? I had to ask him
(23:35):
to repeat the question twice because I couldn't figure out
what he was talking about. And then I realized, in
the French model, there is no such thing as double jeopardy.
But that is a right that that exists here in
a way in which you don't find in other in
other systems. Next slide. Let's talk a little bit about
(23:57):
threats to the rule of law. Next slide. So we've
been an interesting environment lately where we talk about partisanship
being a significant problem, and I don't mean to minimize it.
I think we are in a very partisan environment. I
think it's probably a more partisan environment than the environment
(24:21):
that I grew up in the fifties and maybe mid sixties,
maybe not as much as we get to the late sixties.
I'll talk about that in a minute, but it is
not the first time for us to have partisanship issues.
And I just sort of randomly picked one era, in
this case, eighteen seventy six to eighteen ninety six, and
I noticed some characteristics in that era. For example, between
(24:43):
eighteen seventy six and eighteen ninety six, no presidential candidate
won a majority of the votes. There were three presidential assassinations, Lincoln, Garfield,
and McKinley. Seven members or former members of Congress were
assassinated between eighteen sixty five. I've in nineteen oh five.
Now we've had some debate over the last a little while,
(25:07):
really going back to some earlier times and questions about
how balloting should.
Speaker 2 (25:16):
Occur and so forth.
Speaker 5 (25:18):
Many people are surprised to learn that the secret ballot
that we properly treat as an important part of the
American electoral experience not provided for in the Constitution of
the United States. It is, in fact something that did
not exist until the eighteen eighties. I believe it comes
(25:42):
over here from Australia, and I think we originally referred
to it as the Australian ballot. And if you think
we have fraud problems, now imagine political parties handing out
ballots and then those ballots being collected as a way
to determine who won. When we talk about some of
these very close presidential elections and winning by you know,
(26:02):
several thousand votes and so forth.
Speaker 2 (26:05):
You know who knows.
Speaker 5 (26:07):
So you know, there are lots of aspects of our
history that when we talk about the rule of law,
we assume today's circumstances apply one and in fact often
they don't.
Speaker 2 (26:18):
Next slide.
Speaker 5 (26:22):
Legislative an executive branch power. So we know from Alexander
Hamilton Federal seventy eight that the judiciary is to be
the least dangerous branch and had certain limited taxing power
and authority over state government, certainly more power that we
(26:43):
had in the Articles of Confederation, but less than perhaps
certainly less than certainly monarcher monarchical regimes had. Next slide.
But those powers have been colliding for a while. And
here again I returned to a theme that I have
(27:04):
mentioned earlier, and I will be mentioning again, which is,
in the ancient words of Ecclesiastes, there is nothing new
under the sun. So we all know about Marbury, right,
the two cousins, John Marshall, Chief Justice of the United
States Supreme Court and Thomas Jefferson, President of the United States,
(27:27):
adverse on this issue. And ultimately the Supreme Court issue
is an opinion written by Marshall that says, yes, there
is such a thing as judicial review, which incidentally is
not referenced in any documents.
Speaker 2 (27:41):
It's not referenced in the Constitution, for example.
Speaker 5 (27:46):
But you know, unfortunately, poor mister Marlberry doesn't get his
his certificate, and so there's nothing really for Jefferson to
squawk about. To say that jeffers and was unhappy about
this is certainly an understatement.
Speaker 2 (28:05):
Worcester versus Georgia.
Speaker 5 (28:06):
If you're looking for an example of a refusal on
the part of a state to follow a court order,
this is, of course, the famous United States Supreme Court
decision at presages the movement to push Native Americans West,
to drive them of their rights. I'm and you know,
(28:30):
Georgia just basically says we're not going.
Speaker 2 (28:32):
To follow it.
Speaker 5 (28:34):
So then we turned to Lincoln's first inaugural and of
course Lincoln was adverse to He was adverse to the
Supreme Court Andred Scott, and in several other ways. There
were issues involving ritz of habeas corpus, which I'm going
to talk about in a minute, sufficiently adversed that his
first inaugural contains this language. If the policy of the
(28:56):
government upon vital questions affecting the whole people is to
be irrevocably fixed by decisions of the Supreme Court, the
people will have ceased to be their own rulers.
Speaker 2 (29:05):
All right, debate the merits.
Speaker 5 (29:08):
Of that language and how it applies and whatnot, but
perhaps less articulately, with less magisterial language. You don't have
to go very far to find presidents of the United
States in the twentieth and twenty first session twenty first
century complaining about the Supreme Court using language very similar
(29:28):
to that. And then, of course we have ex party merriment.
And here we have the rits of habeas corpus issues,
which are raised not only in the Lincoln administration but
also in the administration of Franklin.
Speaker 2 (29:40):
Roosevelt next light.
Speaker 5 (29:44):
So not too long ago we heard some conversation, I think,
in the last administration, about maybe we should reform the
Supreme Court. This was not the first time this issue
has come up, and of course Roosevelt addresses this issue
in his fireside chat of March nine, nineteen thirty seven,
(30:06):
where he addresses his concerns about, as others might have
characterized him, the nine old men on the Supreme Court
getting in the way of his program, and he notes
that the Court has been acting not as a judicial body,
but as a policy making body. Have we heard this before?
Has this come up before? I think it has. What's
(30:29):
interesting about his effort to amend the constitution, make changes
to deal with to change the.
Speaker 2 (30:42):
Way in which the body.
Speaker 5 (30:43):
Is constituted, is that he had supermajorities in both the
House and Senate and couldn't get it done. So the
legislature was involvough of his party was unwilling to.
Speaker 2 (30:58):
Take this step next time.
Speaker 5 (31:03):
But these are not the only rule of law issues
that came up in those years. We talked about court packing,
UH in Rey queering, which involved the arrival in the
United States of several saboteurs, eight of them, and they
were I mean, I think it was a serious problem.
(31:26):
It did have did have a.
Speaker 2 (31:28):
Little bit of the UH.
Speaker 5 (31:32):
Character of perhaps a cartoon like event, but it was
a pretty serious matter, and he was treating it as
a serious matter.
Speaker 2 (31:39):
And insisted that.
Speaker 5 (31:42):
Insisted that, uh, these were going to be tried by
a military tribunal. And in amidst all of this, uh,
there's a question of what happens, uh if a rid
of habeas corpus arrives at his doorstep. And there's a
famous memo to Francis Betel, his attorney general, saying we're
not turning them. More essentially, we're not turning these folks
(32:04):
over if a rich shows up. Well, no rich showed up,
So it turned out not to be an issue, but
it is an illustration of these problems. Now, let me
say a word about something that I didn't know about
until a few years ago, and that were the gold
clause cases. The citations are set out below and also
(32:25):
to an excellent Law Review article by Professor Jared Meglioca
who discusses the gold clause cases and constitutional necessity. I'm
not going to go into this in great detail here
because it takes a while, but essentially the argument was
about whether you whether or not contracts that had gold
(32:47):
clauses in them could be repudiated by the government. These
gold clauses were relevant because the economy was in a
deflationary period. If people could insist on payment and gold,
it would cause all kinds of economic iss shoes. And
in fact, there is a fireside chat prepared by President
Roosevelt which Professor Maglioco specifically recognizes discusses that excuse me,
(33:15):
excuse me, it would have been delivered had the Supreme
Court come out differently on Supreme Court didn't and Perry
enords the two citations that you see there the Supreme Court.
Speaker 2 (33:25):
You know, it actually looks very much like Marbury.
Speaker 5 (33:28):
If you think about this, it recognizes that these clauses exist,
that they were valid, but they were ultimately unenforceable.
Speaker 2 (33:37):
And it does look very much like very much like Marburry.
And you know.
Speaker 5 (33:44):
We we lose sight of these things because we weren't
alive in their in this era. We didn't see it,
we didn't hear it. It's something that legal scholars talk about.
Speaker 2 (33:54):
It sort of passed into history. It's sort of like campaigning.
Speaker 5 (34:00):
You know, if you're you're you're not part of the
time frame, you don't know, you know, you don't see
the campaigning in a way in which you can compare
it to today. But in fact, when the Wilkie or
one of Wilkie's advisors, part of the Wilkie campaign, referred
(34:20):
to Roosevelt as the Bolshevik in the White House, and
of course Roosevelt Roosevelt ran against Herbert Hoover in all
four of his elections, even though Hoover had had not
served as President of the United States since nineteen thirty three,
and Truman, in his campaign has one successful campaign for president,
(34:46):
you know, characterized his opponents as Nazis. I mean, so
the kind of language that we decry today, it's not
exactly it's not exactly unheard of. Interesting fact about Truman,
by the way, is when he becomes president, who does
he look to to help with relief in Europe Against
(35:06):
the advice of some of the Roosevelt partisans in the
White House, who, as I said earlier, had been running
against Truman or running against Hoover all those years, he
looks to Herbert Hoover. Hoover, of course, who had been
very successful in World War One in providing relief to
folks in Europe who are starving as a result of
the war, and he reprised that role for Harry Truman
(35:28):
in nineteen forty six in the years to follow. And
that's having flapp Truman around a little bit here and
crediting him for that he recognized it that it was
important to do that.
Speaker 2 (35:39):
Next slide. All right, let's talk.
Speaker 5 (35:46):
Briefly in a few minutes that I have left here
about other challenges to the rule of law. I happen
to think judicial elections are a major problem. And by
judicial elections, I'm speaking here sort of generically.
Speaker 2 (36:02):
I think there's a sort of ladder of how.
Speaker 5 (36:08):
Big the challenge is depending on the type of judicial
election process, and with partisan judicial elections at the top
of the heat. But I think the distinction between the
partisan and non excuse me, non partisan judicial elections is
receding into history, and they're all becoming partisan. At least
(36:29):
they are all becoming partisan in some states. Only seven
states have no judicial elections of any sort all in
the East. They draw their judicial election process from earlier.
Speaker 2 (36:40):
British and United Kingdom traditions. Fifteen states have.
Speaker 5 (36:45):
Retention elections, and then the remaining twenty eight states have
some judicial election process that's either partisan, non partisan, or
both depending on the court jurisdiction.
Speaker 2 (36:55):
And you're looking at it a different way.
Speaker 5 (36:57):
Thirty eight states conduct some form of elections for the
state Supreme court next light. And of course, as we
know here in Minnesota to the east of US, Wisconsin
just finished they have a off season election cycle for
(37:18):
judicial campaigns. One hundred million dollars was spent in that
most recent Supreme Court race. If you add everything up,
and you know, that's about twice what we spent two
years ago, and you know, you have to ask yourself,
where does it go from here? And we have seen
increased judicial spending in a variety of different ways. And
(37:40):
the problem, of course with judicial elections is it creates
concerns about whether or not the rule of law is
applying here or whether it's being treated as just another
form of partisanship.
Speaker 2 (37:55):
I will say, just to defend my colleagues in.
Speaker 5 (37:57):
Various states that have judicial elections, Minnesota has them, we
have not seen this kind of money spent, but we
have seen at least a couple of election cycles where
there was significant dollars spent.
Speaker 2 (38:07):
Nothing on this order. Mine was.
Speaker 5 (38:10):
In fact, my one contested race in twenty twelve was
an example of this. Quite a bit of money we
spent in that race, and I would never argue that
it actually reflects and unwillingness to abide by the rule
of law. But perception can become reality, and that is
a real problem in judicial elections. Next slide. So there
(38:36):
are some other challenges. I've been saying that I didn't
solve the judicial election problem for you. That's a separate program,
and we could talk at great length about what alternatives
have been discussed. None of them have worked well or perfectly,
and we have a lot to do there. All Right,
some other challenges. How many federal crimes has Congress created?
Speaker 2 (39:00):
We don't know. Nobody knows.
Speaker 5 (39:03):
George Mason University and the Heritage Foundation estimated approximately fifty
two hundred crimes, but there's no comprehensive list, and that
estimate does not include crimes created by rule. The Code
of Federal Regulations now exceeds one hundred and seventy five
thousand pages.
Speaker 2 (39:19):
Now, if I were doing this program live, I would.
Speaker 5 (39:26):
I would have with you or with you here today
as we're visiting my one volume eighteen sixty six copy
of Minnesota Statutes. That was all the laws of Minnesota
in that era. It's now if you add in the
regulations and the sort of other pieces. It's somewhere between
forty and fifty volumes. Actually haven't tried to count the
number of volumes. I probably should do that.
Speaker 2 (39:47):
It's all.
Speaker 5 (39:49):
And if you can't know all the law, are you
undercutting the rule of law? A really good question to
which I don't have an answer. Next question, so, what
about what about crimes that are created by regulation? This
(40:11):
is an example of one that I get from the
very useful.
Speaker 2 (40:16):
X feed, Twitter feed whatever.
Speaker 5 (40:18):
We're calling it the crime of day and this one
is the federal pie and tart divide. You can read
it for yourself. You better make clear about the distinction
between your frozen cherry pie or your frozen cherry tart
because it may well be a current next slide. So,
I think this is one of the least explored, but
(40:40):
maybe the most important challenges to the rule of law,
and that's the collapsing nature of civic education in the
United States, particularly in the elementary and secondary.
Speaker 2 (40:54):
Environment.
Speaker 5 (40:55):
Seventy five percent of Americans can't name all three branches
of government of Americans can't name one First Amendment right,
and the National Assessment of Educational Progress, which is probably
the closest thing we have to a gold standard to
determine the accuracy of or to determine what progress we're
(41:19):
making with history and civics tells us that thirteen percent
of eighth graders were proficient in history and twenty percent
of eighth graders were proficient in civics, and those numbers
haven't changed in twenty five years.
Speaker 2 (41:29):
This is not a new problem. Cod may have made
it worse, but it's a significant issue.
Speaker 5 (41:36):
Lawyers, incidentally, can be very helpful in volunteering and working
with students in this area. And maybe we'll talk about that.
If I have a moment. Next slide, well where do
we go? Where do we go from from here? Next slide?
I want to offer a couple of suggestions here. One
(41:57):
ties back to that last slide that I talked about,
which is on a retail level. Lawyers of all stripes,
all beliefs, you know, whatever political parties you might belong
to or support, or whatever kind of law practice you have,
you're in a really good position to be spending time
(42:19):
with middle school and high school students. If you can
persuade local teachers to let you assist to come in
and talk about some of these issues. Really, it really
makes a difference. There are challenges to that, but I
offer that as one suggestion. But there's some other things
that we maybe want to think about. I'm not going
(42:40):
to talk about administrative law here. I've got a great
quote that if I had a little more time.
Speaker 2 (42:44):
I would read to you.
Speaker 5 (42:45):
That gives you some indication of the problems that it presents.
But we might have an opportunity for some reform here.
Now note the point that I make here about taking
advantage of January twenty twenty nine.
Speaker 2 (43:00):
What do I mean by them?
Speaker 5 (43:03):
In twenty twenty eight, there will be a presidential election
that will result in the election of somebody who is
that there's no second term. It's going to be somebody
who is not currently serving as president. And I think
there might be some advantages here in terms of encouraging
(43:26):
some bipartisan ways of addressing some issues people have. You've
got your own list of issues, Other people have a
list of issues. Let me give you an example of
what I mean by this. In both of the last
two presidencies, the current the current one and the preceding one,
and going backwards, I guess all the way to the
(43:48):
Clinton years, there have been concerns about presidential exercise of
the pardon power. It seems to me that you could
put together a pretty good argument that would be, if
we want to make some changes in the form of
a constitutional amendment, this would be the time for Congress
to pass such a thing and send it to the states.
(44:11):
For example, Robert Gray Boyce, who's a retired law retired
I should say retired professor from Columbia I believe, originally,
has given an example of this. He says, well, let's
have a ninety day public comment period before any pardon
can take effect, and that would take you back to
the end of October. So controversial pardons, there'd be a
(44:35):
public discussion and a public referendum on whether or not
the voters are offended by any particular pardon. Now, maybe
you have to run that back to one hundred and
twenty because of increasing use of early election provisions. But
that's an example of an idea that maybe you could
sell both political parties knowing that nobody knows what party
(45:01):
will be in control of the White House. Maybe true
of some administrative procedure issues and altho ethics and disclosure provisions.
Next slide, So, where I've sat on the bench for
nineteen years, nineteen years and change in a building designed
(45:23):
by Cask Gilbert, who also designed many years later the
United States Supreme Court Building. If you ever get a
chance to see the Minnesota Courthouse in the United States
Supreme Courthouse to compare them, there actually are some similarities,
but the door that you come in and out of
that courtroom, in addition to having a clock that most
of the time actually works. There's a line from one
(45:47):
of John Locke's many writings, in this case his second
Treatise on Government, where it says, where law ends, tyranny begins.
And I thought that was a great way to end
this seminar. All of us who are participating here today
are believers in the rule of law. We may have
varying opinions about how do we go about preserving it,
(46:11):
but when we consider the roots, how it's been used,
and the challenges that we've faced over the last two
hundred years, I'm actually an optimist that we're going to
continue to prosper, and we're going to continue to prosper
because the rule of law is going to continue to
(46:32):
be an important process for us. In that effort. Much
more could be said about this topic but I've been
told to quit at twelve forty nine.
Speaker 2 (46:43):
It is now twelve forty nine. So thank you all
for being with us over this period of time.
Speaker 5 (46:48):
And I'll take whatever questions Professor McGinnis sends my way.
Thank you justsin Center for the truly informative and excellent presentation.
So we do have some questions in the chat. So
I'm going to go in the Q and I should say,
I'm going to go through and take a look at
I'll pick this one. And independent judiciary is meant to
(47:09):
guarantee impartiality, and in practice the pressures of judicial efficiency
and docket management can work against that ideal, especially when
courts face limited courts face limited time and resources. How
do you see the balance between public perception of the
court's role and the court's actual operations being improved to
(47:29):
strengthen confidence in its impartiality and effectiveness. And it says
capital C courts, So I presume it's referring to the
US Supreme Court primarily, Well, yeah, and I don't I
think the volume of case law or the volume of
matters that courts have to deal with either of the
(47:49):
United States Supreme Court. But also I want to focus
on our district courts because the reality is that when
most citizens have a legal dispute, I mean that's there,
that's their window into the rule of law. I mean,
how was the case handled? What do they have a
sense that it was handled fairly? And a lot of
(48:10):
that is driven by some of the issues that the
questionner mentions here, which is when I started practicing in
eighteen seventy nine, you would have the opportunity for, you know,
pretty long conversations with district court judges, some rejudgment motions,
other motions, but also informally, in many respects, a lot
of that has vanished as the number of cases that
(48:33):
courts are asked to decide. And so I think what
the questioner is raising here that has a corrosive effect
on the rule of law. And I think the answer
it really is that at the retail level, we've got
to we've got to be explaining to legislators and candidates
for governor because it's mostly a state court issue, I think,
(48:56):
but it's it's also a federal court issue. But I
see it as a state court issue because that's where
most of these cases get decided. And you've got a
contract case a divorce, questions about the whether or not
children were cared for properly. These are the ways in
which people form opinions about courts. And if they see
the process as we're just part of an assembly line
(49:18):
to get this file moved from here to there, that's
terrible for the image of the rule of the rule
of law. And the only way to deal with that
is more resources and more judges. And that's going to
be as popular as you might expect with legislators. There
are no votes to be had for legislators by providing
additional funding to courts. I can tell you that after
(49:38):
spending twenty five years visiting with legislators on that very topic.
Speaker 4 (49:42):
Thank you, Jessics Ederson appreciate that response. So another question
we have is regarding in ray querying and just asking
if you know whether some of the German saboteurs were
executed before the court's decision rejecting their claims before that
was a publicly issued opinion.
Speaker 2 (50:00):
The answer to that, you know, I don't recall.
Speaker 5 (50:03):
To be honest, I would be I would be guessing
on that and I should know the answer to that question,
and I don't. I think I think the executions occurred
after the opinion came out, but I'm not one hundred
percent certain somebody will look it up and tell me
if I'm wrong.
Speaker 4 (50:19):
Thank you very much. I'm not sure the answer to
that either, so I appreciate that. Another question have is
do you agree that the need for congressional term limits
is the most important amendment we need, I guess a
constitutional amendment. Do you think that relates to what we're
talking about with regard to rule of law?
Speaker 2 (50:37):
I have had I've had varied opinions on this.
Speaker 5 (50:41):
You know, I had some exposure to parties in politics
forty years ago, thirty five years ago. I think expansive
term limits probably are a good idea. I think some
of the term limits that you see proposed six years
for the House and two terms for the Senate run
the risk of handing over operation of the government to
(51:03):
the permanent administrative class.
Speaker 2 (51:06):
And so I would say that if you if you.
Speaker 5 (51:09):
Start talking about maybe twelve years in the House and
maybe three terms in the Senate or something along those lines,
I could see it as very beneficial. But the problem is,
I think the institutional problems with Congress are are it's
increasing parliamentary approach as opposed to institutional loyalty. You know,
(51:36):
there's we can always overstate the amount of institutional loyalty.
But Roosevelt had all kinds of problems in the in
the example that I cited, with members of the House
and Senate who were not willing to go along with
changing the Supreme Court, even though they were in the
same party. Would you get that same pushback today. I
(51:57):
don't know the answer to that question, and I don't know.
I don't know how you build that institutional loyalty. One
of the reasons why I think maybe starting slowly with
some of these ideas that maybe you can get going
with more simple concepts might be many of some merit.
Speaker 4 (52:13):
Thank you very much for that next question I would
to pose. One of our attendees has asked, to the
extent that courts increasingly weigh in on political questions and
appear to resolve cases on political bases. Is not some
level of political accountability, such as via retention, election or
(52:34):
recall justifiable.
Speaker 5 (52:37):
That is a great question, and it is a very
fair question. And I have to tell you that when
I was busy arguing, I was a member of the
Qui Commission. As you referenced in your over generous introduction
to me and the commission, had we came very close
to passing this thing was a provision to move to
(52:57):
a retention model in minnesot to combine with a very
robust performance evaluation process. Couldn't quite get it across the
finish line. But one of the best arguments against that
process is what you have, just what you've just cited here,
which is an increasingly complex world. If we're if we're
(53:17):
asking judges to make or judges take to themselves to
make political decisions, why isn't there political accountability?
Speaker 2 (53:26):
And and I, you know, I think that's a I think.
Speaker 5 (53:29):
That's a great question, and it's a great argument against
the argument that I just made, which is.
Speaker 2 (53:35):
I think I think.
Speaker 5 (53:37):
The threat to judicial impartiality is greater than the threat
of absence of political accountability. But people of good faith
and intelligence can disagree on that question. And and all
I can tell your question there is there. It's he
or she is not wrong that it's an issue.
Speaker 2 (54:00):
Thank you for that. Kind of a corollary.
Speaker 5 (54:02):
One way to deal with that too might be when
you talk about term limits. For example, in Minnesota has
a mandatory retirement of age seventy for judges, and I
actually think again that may be that may be that
may be a way to maybe if maybe if you
don't have people serving for forty five years or whatever,
maybe maybe that helps that process a little bit.
Speaker 2 (54:23):
But I don't know. No, thank you for that.
Speaker 4 (54:25):
There's actually a corollary type of question that someone'supposed that
should we maintain life tenure when justices make political decisions
despite their job security, referring to federal life tenure under
Article three? And yeah, that's this idea that you know,
the idea of the installation from review and be able
to have life security promoting independence.
Speaker 2 (54:48):
The ideas are supposed to be free of political pressure.
Speaker 4 (54:50):
But if you're actually doing making decisions, or it appears
that from your opinions that you're writing from a very
much a policy driven political standpoint, perhaps that that's one
reason people can call that into question.
Speaker 5 (55:03):
And this becomes is this a potential area where I
suspect there's too much division to actually get here. But
you know, how you to construct term limits? For example,
if it's a one fifteen or twenty year term for
a state Supreme Court justice, And I think there's at
(55:24):
least one state that has something like that. You have
to think about which one it is right off hand,
but you know, maybe there's an argument for that. The
problem with you know, retirement ages is is that you
then put the political parties in the field of well,
then we're going to just make sure we appoint judges
(55:45):
who are younger and younger to maximize their time on
the bench. Now, one thing I just I want to
stress with folks when we talk about these questions. We're
debating this as if this is something new. If you
go back to Roosevelt's appointments to the court, I mean,
who does the appoint Hugo Black? You know Black as
a loyal senator for Roosevelt's new deal. He turns out
(56:11):
or of course, there are some aspects of his background
that we've we've discussed that are also somewhat challenging, but
he turns out to be a somewhat complicated member of
the court in terms of his adherence to to sort
of democratic small the political party principles. He turns out
to be perhaps not exactly what Roosevelt had in mind,
(56:34):
but that was what he was doing, was appointing somebody
who he thought saw the world that he did. So
so these questions about judicial appointments are not new, and
they are questions that I mean, I don't have any
independent research into this, but I'm very certain that when
ros when Lincoln was looking at appointments to the Supreme Court,
(56:55):
he was interested in appointing people who thought dred Scott
was a really bad idea. And I would note that
one of his appointments was David Davis, his judge that
he regularly appeared in front of in Illinois and who
was the chair of his.
Speaker 2 (57:12):
Chair of his campaign.
Speaker 5 (57:14):
At the Republican National Committee in Chicago in eighteen sixty
and famously, when Lincoln gave his stuffy instructions to David
Davis that he was to make no deals in his name,
Davis's response to somebody who inquired about whether or not
Davis was going to follow Lincoln's instructions was to say,
(57:34):
Lincoln's not here.
Speaker 2 (57:36):
So, I mean, some of these things are not new.
That's very good. Well, ex so we're now a lot
of time and just so.
Speaker 4 (57:45):
Much appreciate Justice enters to your presentation and thank you
for everything you've done through your career through giving back
through sharing ideas about from your experience and wisdom. It's
been a privilege to moderate this program for you. I'll
give it back to Kayla.
Speaker 2 (58:00):
Maleko those thanks.
Speaker 3 (58:02):
Really appreciate you both taking this section of your days
and sharing your expertise and insight. Thanks also to our
audience for joining and participating. We welcome listener feedback by
email at Fedsockforums at fedsock dot org, and as always,
keep an eye on our website and your emails pronouncements
about other upcoming virtual events. With that, thank you all
for joining us today. We are a journed.
Speaker 1 (58:22):
Thank you for listening to this episode of fedsoc Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the Practice Groups, and to
become a Federal Society member, please visit our website at
fedsock dot org.
Welcome to FEDSOC Forums, a podcast of the Federal Society's
Practice Groups. I'm Ny kas Merrick, Vice President and Director
of Practice.
Speaker 2 (00:08):
Groups at the Federal Society.
Speaker 1 (00:10):
For exclusive access to live recordings of fedsock Forum programs,
become a Federal Society member today at fedsoc dot org.
Speaker 3 (00:18):
Hello and welcome this FEDSOC Forum webinar call today September
twenty fourth, twenty twenty five. We're delighted to host the
twenty twenty five Ron Rotunda Memorial Webinar, which this year
will focus on judicial independence and the rule of law.
Where we've been, where we're going, and what to do
about it. My name is Kayla Kleist, and I'm Deputy
Director of Practice Groups here at the Federalist Society. As always,
(00:40):
please note that all expressions of opinion of those are
the experts on today's program, as the Federalist Society takes
no position on particular legal or public policy issues. Now,
in the interest of time, we'll keep your introduction of
our guest day brief, certainly more brief than their distinguished
careers would deserve, so I highly recommend that, if you're interested,
you check out their impressive full bios at fedsock dot org. Today,
(01:03):
we are fortunate to have with us as our moderator,
Professor Michael McGinnis, who is a professor of law and
the J. Phillip Johnson Facley Fellow at the University of
North Dakota School of Law, where you joined the faculty
in twenty ten and served as dean from twenty nineteen
to twenty twenty two. Freessor mcguinness's research and scholarship interests
include lawyer and judicial ethics, constitutional law, especially First Amendment,
(01:24):
separation of powers and federalism, and cultural challenges faced by
conservatives and law schools and the legal profession. Before joining
the Legal Academy, Professor McGinnis served for twelve years as
discipline and counsel for the Supreme Court of Delaware. And
I'll leave it to him to introduce our other speaker
for the day. A last note before I get off
your screens, if you have any questions throughout the program,
please do submit them by the question answer feature likely
(01:46):
find out the bottom museum screen so they'll be accessible
we get to that portion of today's webinar, I'll ask
that all questions submitted there a pertain to this discussion
and b and with the question mark but that thank
you all for joining us today. Fress McGinnis, the floor
is yours.
Speaker 4 (02:00):
Thank you, Kayla, and it's an honor to be here
today to moderate this year's Ron Retunded Memorial webinar. He
was an amazing scholar, amazing teacher. He wrote semnal law
books that are still used in law schools across the
country and was the author of over five hundred law
review articles, astonishing and other legal publications that have been
(02:20):
cited more than two thousand times by law reviews, by
state and federal courts at every level, by the US
Supreme Court, and around the world. He was also a
member of the Federal Society's Practice Group on Professional Responsibility
and Legal Education, and each year we hold an annual
forum in his honor discuss pressing issues and trends in
legal culture. I also have a personal memory from Professor
(02:44):
Rotundo over the years of memories. He was actually a
great scholar while I was still in law school. The
fact of my constitutional law hornbook has Professor Rotunda's name
on it, and I still remember that how effective that
was in helping me through those courses, but also over
the years professional responsibility circles, be able to see and
talk with him at ABA meetings and discuss issues, and
(03:05):
just an amazing man, an amazing person, and so it's
a delight to be here to participate in this honoring event.
So joining us for the twenty twenty five installment of
the series will be the Honorable G. Barry Anderson, and
he's going to offer his insights on judicial independence and
the rule of law, and the role of lawyers in
supporting the rule of law. He will discuss how such
(03:28):
support can be well demonstrated to clients when litigation does
not go as they hoped. And also he will also
address systems of judicial selection and their impacts on the
independence and am partiality of the judiciary. When we introduce
Justice Anderson, to give you some background, a very brief
about his bios, impressive and credible. Nineteen seventy sixth graduate
(03:49):
of Gustavus Adolphus College in Saint Peter, Minnesota, and a
nineteen seventy nine graduate of the University of Minnesota Law School.
He was a member of the Minnesota Court of Appeals
from August of ninety eight until his appointment to the
Minnesota Supreme Court. He joined the Court in October of
two thousand and four and retired from the Court in May.
Speaker 2 (04:06):
Of last year.
Speaker 4 (04:08):
Prior to his judicial service, he practiced law in Fairmont
and Hutchinson was a partner in the law firm of Arnold,
Anderson and Dove. His civil trial experience includes personal injury
and mechanically litigation, and he also served as the city
attorney of Hutchinson for over a decade so. His background
also includes substantial public service as a board member and
chair of a variety of community organizations, including service clubs,
(04:31):
task forces, and a local public access channel, as well
as a wide variety of other community activities. He served
several terms on the Minnesota Judicial Council, the principal administrative
body for the Minnesota Judicial branch. He also helped organize
and served as a member of the Minnesota Citizens Commission
for the Preservation of an Impartial Judiciary, chaired by former
(04:52):
Minnesota Governor Albert h Q. The Commission considered issues relating
to judicial selection, independent an impartiality. After Justice Andred has
presented his remarks, we'll have an opportunity for what I
believe will be a very engaging question and answer time.
So please be thinking about your questions as we go
(05:12):
through the presentation and put them in the Q and A,
and we'll take a look at them and be happy
to discuss them.
Speaker 2 (05:18):
So with that we begin, Justice Anderson.
Speaker 5 (05:22):
So much for that kind introduction, and I'm delighted to
be with all of you today to talk about some of.
Speaker 2 (05:27):
These rule of law issues.
Speaker 5 (05:29):
I want to see a word of a Professor Rotunda
in whose memory we conduct this program. I had the
privilege of serving with him as a moderator on a
panel that he happened to be with I happened to
be on topics involving legal ethics, and as the introduction noted,
Professor Rotunda's textbook on legal ethics is still available and
(05:51):
still used even though he passed away a few years ago.
But my principal memory from that experience was retaining Professor
Rotunda was in making some important legal points for the
audience to consider. Regrettably, I lack Professor Rotunda's both his
facility with the technology and I'm not nearly as entertaining,
(06:14):
But we're going to try to manage both of those
problems as we work our way through some rule of
law issues. So let's get right to it and talk
a little bit about some roots to the or to
the rule of law that we're going to be talking
about today. So next slide, please, next slide. We begin
(06:37):
at the beginning, always a good place to start. When
ordinary citizens think about the rule of law, they probably
think about it in terms of a rule book, a
volume of statutes that explain what it is they're supposed
to do and how they're supposed.
Speaker 2 (06:55):
To do it.
Speaker 5 (06:56):
And those kinds of rule books date back thousands of years.
Most of us are familiar with the Hammer Robbie Code,
which is probably about eighteen hundred BC, but you can
find scraps of similar codes going back much earlier than that,
and can back back to ancient Chinese law codes. And
these codes do in fact set out law. There's contract law,
(07:19):
how we should support or how residents should support widows,
crimes are all mentioned, and you can find lots of
detail in these codes. One example that I often cite
for those lawyers who do medical malpractice work, either plenty
or defense, Hammer Robbie's code actually addresses one of those issues.
(07:44):
For example, if a physician operates on a person of
higher standing social standing than the physician and the patient dies.
The penalty is to remove the physician's hand. On balance,
I think i'd prefer malpractice insurance. But these codes are
our first effort. But one of the things that characterizes
(08:04):
these codes that are very different than the rule of
law as we understand it, is it is a top
down arrangement. In other words, the king the rule. The
leader says these are what the rules are, and if
the rules become inconvenient, the king changes the rules, or
abolishes the rules, or ignores the rules. And this is
(08:28):
a very different framework than we are used to. Next slide.
Here you have a photo of what that Hammurabi code
looks like, and also some of the commentary that I
mentioned here about its top down format. It is surprising
how much of that ancient history we've preserved. Next slide,
(08:51):
So let's talk about how we define the rule of law.
And here I find the work of a legal scholar.
We actually legal philosopher Brian Tamanaha to be very useful.
And I'm not saying this is the only definition, may
not even be the best definition, but for purposes of
our conversation today, we're going to work off of this
particular framework. Rules that are stated in advanced rules that
(09:13):
are known and accessible, and a provision for access to
a fair and independent judiciary to enforce and reject application
of the rules, and most importantly, keeping in mind what
we had to say about hammer Abe and his cousins,
rules that restrict both the sovereign and the citizen. Now,
I want to say a word about the independent judiciary concept.
Today I'm talking to lawyers, and for lawyers, when they
(09:37):
see an independent.
Speaker 2 (09:38):
Judiciary, they know what that means.
Speaker 5 (09:41):
They know that an independent judiciary incorporates and includes the
concept of an impartial judiciary. When you talk to ordinary
members of the public, it's sometimes a different story, and
they look at an independent judiciary and they say to
them ourselves independent from who or from what. So my
(10:05):
advice to all of us when we go out and
talk about the rule of law, and I'd.
Speaker 2 (10:09):
Be willing to bat many of you.
Speaker 5 (10:10):
In the current culture and environment that we find ourselves
in and have been in for a number of years,
you probably get invitations to speak about what does it
mean to talk about the rule of law.
Speaker 2 (10:22):
I recommend.
Speaker 5 (10:25):
Modifying some of what you see here and talking about
a fair and impartial judiciary because We all understand that,
and we all want that when we walk into a courtroom,
we want the judge, whoever he or she is, to
be fair and impartial. So that would be the focus
I think we should have instead of talking about independence.
(10:45):
Lawyers are going to have to train themselves to not
do that next line.
Speaker 2 (10:51):
So then we.
Speaker 5 (10:52):
Turn to you know, what is the law and for
us in our environment, we want to talk about American law. Now,
let's talk a little bit about constitutional law generally. When
our Constitution was adopted in seventeen eighty seven, actually formally ratified,
(11:18):
Rhode Island was the last state to ratify it. When
it was formally ratified in seventeen eighty eight and became law.
It contains this provision supremacy clause of the Constitution, which
is interesting. But what's interesting about it is how unusual
it was. And why do I say it was unusual.
Let's talk a little bit about how how the Constitution
(11:41):
came to be. As we all know, there's Constitution Convention
in Philadelphia, Pennsylvania, Madison, Hamilton j. Many other founders are present,
arguing about a variety of different provisions, but they include
this provision in the Constitution And what's interesting about this
is that they them, say Elves, were actually citizens of
(12:03):
different states. Madison of Virginia, Hamilton of New York j
I think was also New York. And yet they agreed
to incent to the Convention and sent the work from
the Convention to the several states for ratification. Another interesting
feature there is the fact that it is ratified by
the citizens. It did not go to the legislators. It
(12:26):
went to separate meetings designed to ratify the Constitution. Again,
what does the Constitution start with?
Speaker 2 (12:35):
We the people? We know that.
Speaker 5 (12:38):
But this is really groundbreaking work that was done in Philadelphia, Pennsylvania.
The Constitution itself was recognized as a groundbreaking document by
others of that era. For example, there were a number
of countries in South Dakota that adopted South Dakota South America.
(13:00):
Maybe South Dakota did too, I guess we'll leave that aside.
But the South America, there were countries in South America
that adopted the Constitution looked very adopted constitutions looked very
much like the United States constitutions. Soviet Union, although it
had other positive provisions, had three separate constitutions, all of
which bought least some similarity to what we know as
(13:23):
our constitution, and yet almost all of those efforts failed.
Our constitution has survived. The rule of law that enforces
the Constitution has survived. And then the question then becomes why.
And that's a really interesting question. Let's go to the
next slide, and one of the reasons why it survives
(13:48):
is that there were other factors at work to the
rule of law. Then just simply a bunch of mostly
smart people show up after Constitution released it on the
world and say here we go. There were other things
that were in the background of all of this. We
(14:10):
talked a little bit here about British common law, the
Petition of Right, the English Bill of Rights, a lot
of other provisions that you could mention. Declaration of rights
from multiple states, much multiple colonies, i should say, because
they were colonies before they were states, and then colonial experimentation,
(14:35):
and keep in mind that we had one hundred years
of experience in governing ourselves. Because the English King Great
Britain was a long ways away. Instructions might be sent
to the leaders of the various colonies. Whether they were
followed or not wasn't always clear, and in the end
(14:58):
Americans had their own courts and their own opportunities uh
to uh to experiment with leadership, and they were more
than willing to do that.
Speaker 2 (15:12):
Uh.
Speaker 5 (15:12):
You know, I think we should mention here, and the
slide does a couple of other things.
Speaker 2 (15:18):
Uh.
Speaker 5 (15:18):
There were philosophical principles that were at work here in
a way in which was unusual separation of powers, which
we'll talk a little bit more about.
Speaker 2 (15:26):
In a bit.
Speaker 5 (15:27):
And then the Declaration of Independence. Big fight among academics
in a variety of formats about the Declaration of Independence
and whether it should be in fact viewed as a
founding document or if it's simply that a declaration of independence.
And I would Lincoln on this Lincoln Lincoln very much
treats the Declaration of Independence as not only an important,
(15:48):
you know, document, uh, with equal standing with Constitution some respects.
I think you could argue he elevates it that it's
a declaration of principles that aren't necessarily followed, principles of
human equality, for example, because the Constitution itself was an
imperfect document and people are imperfect. But it is nonetheless
(16:11):
a declaration of those principles. He writes separately in a
fragment that that we have that we found post his death,
he writes. He writes of the apple of Gold being
the UH Declaration framed in the silver that is the
(16:36):
the Constitution. So as a practical matter, I think we
have to view it as a founding level document, even
if there's some argument about how effective it is, and
of course individual states.
Speaker 2 (16:46):
Had their own.
Speaker 5 (16:49):
Their own provisions there as well. Let's go to the next.
Speaker 2 (16:53):
Slide, So let's talk briefly.
Speaker 5 (17:00):
I gave I've given longer expositions of the Magna Carta,
but let's talk briefly about it, because I think it
does help explain some of our origin story here. But
let me begin with a word of warning about the
Magna Carta. Again, this is another topic that academics fight about. Well,
we could have the professor talk about Dean and Professor
(17:23):
McGinnis talk about these fights, but then this would turn
this forty five minute to an hour podcast into several hours.
So we'll just cover it briefly here to note that
there's a pretty good argument that we overdo the comparisons
to the Magna Carta. King John reputitated, repudiated almost immediately
and died soon after it was an intra elite argument.
(17:44):
Nobody was asking the shop owners and the homeless on
the streets what they thought about how power should be
divided divided among the powerful. And although it makes reference
to judgment by peers, they are talking about ordinary citizens,
they're talking about the elites of that time. And there
(18:05):
are also some provisions that are frankly pretty hair raising
provision limiting the rights of women to testify, and frankly
anti Semitic language dealing with the ability of Jews to
collect some debts from underage debtors, and some practical of
vice about fish traps that probably isn't much used to
us now. But having said all of that, it's a
(18:26):
remarkable document, and in many respects the Americans make more
use of it than the Bridge do, which is why
I mention it here. Next line, so Manga Karta has
it's of course, is a British document celebrating about it's
(18:47):
eight hundred and fiftieth anniversary or thereabouts. But in the
United States it's treated as the first written limitation on
the power of the ruler and influences what we we
come to talk about checks and balances and separation of
powers and once again in trines the rule of law.
(19:08):
Even leaders are bound by the law next slide. And
we have not hesitated to cite it. The Supreme Court
cited it over one hundred and seventy times. You see
there a variety of issues that have been addressed by
the United States Supreme Court. And when I talk about
(19:30):
it being something that is really rooted in American legal tradition,
in a way in which I would argue, it's not
even rooted in the British legal tradition, although certainly regarded
as significant. In about nineteen fifty seven, there had been
no formal monument that had been created to the Magna
Carta at a running meet where it was signed and
(19:52):
such a monument. And I think I have the year right,
maybe fifty six to fifty seven in there somewhere. I
was three at the time, and I wasn't paying much
attention to that, but that's what I that's what I read. Anyway,
It was actually funded by the American Bar Association. Is
the American Bar Association. It puts up that permanent memorial
to the Magna Carta at running mead, and not the British.
Speaker 2 (20:13):
Solicitors or whatever.
Speaker 5 (20:14):
So so when I say we found it to be
more significant in some respects than the Brits.
Speaker 2 (20:18):
That's an example of that.
Speaker 5 (20:21):
Next slide, uh And this gives you some idea of
of where and I'm particularly I want to particularly credit
professor David Schulz from ham In University for this slide,
because I think it's a It does a pretty good
job of laying out where we have principles that and
(20:41):
how we trace them back and and and to h
and to the Magna Carta. Now when we talk about
origin stories and here I want to go into a
little more detail about the rule of law, custom, tradition
and norms are important in a way in which written documents,
(21:03):
while they're relevant and interesting and useful, are also important.
French philosopher, lawyer author Tolkville makes a visit to the
United States and writes a two volume set of observations
about what he saw here sort of cabin together as
democracy in America. And one of the stories he tells
(21:27):
in this book, or actually two books published several years apart,
is about observing civil journal civil jury trials in a well,
I should say it was more than civils civil and criminal,
but jury trials in a rural part of America.
Speaker 2 (21:44):
And you know, this was in an era.
Speaker 5 (21:46):
In which judges and lawyers travel together, arrive in town,
the lawyers would be retained to deal with particular legal issues.
Cases would be tried before a jury of their peers,
Judgments would be rendered, the judgments would be followed, and
then the judges and lawyers would pick up and move
on to the next time. This is exactly what Lincoln's
(22:06):
law practice looked like in his early days. And actually
David Davis, who was often a judge in these proceedings,
was part of this traveling parade, and topfl found this remarkable,
the adherence to the rule of law. And there are
other observations that he made that were pretty significant. And
one of the reasons why when we talk about Tokville
and I think he's particularly useful here is because he
(22:30):
says he makes these observations. But if you know his history,
his great grandfather was.
Speaker 2 (22:39):
The lawyer.
Speaker 5 (22:41):
Designated to defend.
Speaker 2 (22:46):
Louis the sixteenth and ultimately both his.
Speaker 5 (22:49):
Great grandfather and Louis the sixteenth are executed by the
French revolutionaries. The American experience of the rule of law
is something very different. And when you don't have of law,
you then have the potential for for these these kinds
of tragedies. I I actually had a brief experience with
(23:14):
a with a French general who came to our court
one day and along with some others from the National
Defense Institute, and asks the question about what is it
you know, if the if the government loses a criminal
trial and the defendant's not guilty found not guilty, how
often does the government appeal? I had to ask him
(23:35):
to repeat the question twice because I couldn't figure out
what he was talking about. And then I realized, in
the French model, there is no such thing as double jeopardy.
But that is a right that that exists here in
a way in which you don't find in other in
other systems. Next slide. Let's talk a little bit about
(23:57):
threats to the rule of law. Next slide. So we've
been an interesting environment lately where we talk about partisanship
being a significant problem, and I don't mean to minimize it.
I think we are in a very partisan environment. I
think it's probably a more partisan environment than the environment
(24:21):
that I grew up in the fifties and maybe mid sixties,
maybe not as much as we get to the late sixties.
I'll talk about that in a minute, but it is
not the first time for us to have partisanship issues.
And I just sort of randomly picked one era, in
this case, eighteen seventy six to eighteen ninety six, and
I noticed some characteristics in that era. For example, between
(24:43):
eighteen seventy six and eighteen ninety six, no presidential candidate
won a majority of the votes. There were three presidential assassinations, Lincoln, Garfield,
and McKinley. Seven members or former members of Congress were
assassinated between eighteen sixty five. I've in nineteen oh five.
Now we've had some debate over the last a little while,
(25:07):
really going back to some earlier times and questions about
how balloting should.
Speaker 2 (25:16):
Occur and so forth.
Speaker 5 (25:18):
Many people are surprised to learn that the secret ballot
that we properly treat as an important part of the
American electoral experience not provided for in the Constitution of
the United States. It is, in fact something that did
not exist until the eighteen eighties. I believe it comes
(25:42):
over here from Australia, and I think we originally referred
to it as the Australian ballot. And if you think
we have fraud problems, now imagine political parties handing out
ballots and then those ballots being collected as a way
to determine who won. When we talk about some of
these very close presidential elections and winning by you know,
(26:02):
several thousand votes and so forth.
Speaker 2 (26:05):
You know who knows.
Speaker 5 (26:07):
So you know, there are lots of aspects of our
history that when we talk about the rule of law,
we assume today's circumstances apply one and in fact often
they don't.
Speaker 2 (26:18):
Next slide.
Speaker 5 (26:22):
Legislative an executive branch power. So we know from Alexander
Hamilton Federal seventy eight that the judiciary is to be
the least dangerous branch and had certain limited taxing power
and authority over state government, certainly more power that we
(26:43):
had in the Articles of Confederation, but less than perhaps
certainly less than certainly monarcher monarchical regimes had. Next slide.
But those powers have been colliding for a while. And
here again I returned to a theme that I have
(27:04):
mentioned earlier, and I will be mentioning again, which is,
in the ancient words of Ecclesiastes, there is nothing new
under the sun. So we all know about Marbury, right,
the two cousins, John Marshall, Chief Justice of the United
States Supreme Court and Thomas Jefferson, President of the United States,
(27:27):
adverse on this issue. And ultimately the Supreme Court issue
is an opinion written by Marshall that says, yes, there
is such a thing as judicial review, which incidentally is
not referenced in any documents.
Speaker 2 (27:41):
It's not referenced in the Constitution, for example.
Speaker 5 (27:46):
But you know, unfortunately, poor mister Marlberry doesn't get his
his certificate, and so there's nothing really for Jefferson to
squawk about. To say that jeffers and was unhappy about
this is certainly an understatement.
Speaker 2 (28:05):
Worcester versus Georgia.
Speaker 5 (28:06):
If you're looking for an example of a refusal on
the part of a state to follow a court order,
this is, of course, the famous United States Supreme Court
decision at presages the movement to push Native Americans West,
to drive them of their rights. I'm and you know,
(28:30):
Georgia just basically says we're not going.
Speaker 2 (28:32):
To follow it.
Speaker 5 (28:34):
So then we turned to Lincoln's first inaugural and of
course Lincoln was adverse to He was adverse to the
Supreme Court Andred Scott, and in several other ways. There
were issues involving ritz of habeas corpus, which I'm going
to talk about in a minute, sufficiently adversed that his
first inaugural contains this language. If the policy of the
(28:56):
government upon vital questions affecting the whole people is to
be irrevocably fixed by decisions of the Supreme Court, the
people will have ceased to be their own rulers.
Speaker 2 (29:05):
All right, debate the merits.
Speaker 5 (29:08):
Of that language and how it applies and whatnot, but
perhaps less articulately, with less magisterial language. You don't have
to go very far to find presidents of the United
States in the twentieth and twenty first session twenty first
century complaining about the Supreme Court using language very similar
(29:28):
to that. And then, of course we have ex party merriment.
And here we have the rits of habeas corpus issues,
which are raised not only in the Lincoln administration but
also in the administration of Franklin.
Speaker 2 (29:40):
Roosevelt next light.
Speaker 5 (29:44):
So not too long ago we heard some conversation, I think,
in the last administration, about maybe we should reform the
Supreme Court. This was not the first time this issue
has come up, and of course Roosevelt addresses this issue
in his fireside chat of March nine, nineteen thirty seven,
(30:06):
where he addresses his concerns about, as others might have
characterized him, the nine old men on the Supreme Court
getting in the way of his program, and he notes
that the Court has been acting not as a judicial body,
but as a policy making body. Have we heard this before?
Has this come up before? I think it has. What's
(30:29):
interesting about his effort to amend the constitution, make changes
to deal with to change the.
Speaker 2 (30:42):
Way in which the body.
Speaker 5 (30:43):
Is constituted, is that he had supermajorities in both the
House and Senate and couldn't get it done. So the
legislature was involvough of his party was unwilling to.
Speaker 2 (30:58):
Take this step next time.
Speaker 5 (31:03):
But these are not the only rule of law issues
that came up in those years. We talked about court packing,
UH in Rey queering, which involved the arrival in the
United States of several saboteurs, eight of them, and they
were I mean, I think it was a serious problem.
(31:26):
It did have did have a.
Speaker 2 (31:28):
Little bit of the UH.
Speaker 5 (31:32):
Character of perhaps a cartoon like event, but it was
a pretty serious matter, and he was treating it as
a serious matter.
Speaker 2 (31:39):
And insisted that.
Speaker 5 (31:42):
Insisted that, uh, these were going to be tried by
a military tribunal. And in amidst all of this, uh,
there's a question of what happens, uh if a rid
of habeas corpus arrives at his doorstep. And there's a
famous memo to Francis Betel, his attorney general, saying we're
not turning them. More essentially, we're not turning these folks
(32:04):
over if a rich shows up. Well, no rich showed up,
So it turned out not to be an issue, but
it is an illustration of these problems. Now, let me
say a word about something that I didn't know about
until a few years ago, and that were the gold
clause cases. The citations are set out below and also
(32:25):
to an excellent Law Review article by Professor Jared Meglioca
who discusses the gold clause cases and constitutional necessity. I'm
not going to go into this in great detail here
because it takes a while, but essentially the argument was
about whether you whether or not contracts that had gold
(32:47):
clauses in them could be repudiated by the government. These
gold clauses were relevant because the economy was in a
deflationary period. If people could insist on payment and gold,
it would cause all kinds of economic iss shoes. And
in fact, there is a fireside chat prepared by President
Roosevelt which Professor Maglioco specifically recognizes discusses that excuse me,
(33:15):
excuse me, it would have been delivered had the Supreme
Court come out differently on Supreme Court didn't and Perry
enords the two citations that you see there the Supreme Court.
Speaker 2 (33:25):
You know, it actually looks very much like Marbury.
Speaker 5 (33:28):
If you think about this, it recognizes that these clauses exist,
that they were valid, but they were ultimately unenforceable.
Speaker 2 (33:37):
And it does look very much like very much like Marburry.
And you know.
Speaker 5 (33:44):
We we lose sight of these things because we weren't
alive in their in this era. We didn't see it,
we didn't hear it. It's something that legal scholars talk about.
Speaker 2 (33:54):
It sort of passed into history. It's sort of like campaigning.
Speaker 5 (34:00):
You know, if you're you're you're not part of the
time frame, you don't know, you know, you don't see
the campaigning in a way in which you can compare
it to today. But in fact, when the Wilkie or
one of Wilkie's advisors, part of the Wilkie campaign, referred
(34:20):
to Roosevelt as the Bolshevik in the White House, and
of course Roosevelt Roosevelt ran against Herbert Hoover in all
four of his elections, even though Hoover had had not
served as President of the United States since nineteen thirty three,
and Truman, in his campaign has one successful campaign for president,
(34:46):
you know, characterized his opponents as Nazis. I mean, so
the kind of language that we decry today, it's not
exactly it's not exactly unheard of. Interesting fact about Truman,
by the way, is when he becomes president, who does
he look to to help with relief in Europe Against
(35:06):
the advice of some of the Roosevelt partisans in the
White House, who, as I said earlier, had been running
against Truman or running against Hoover all those years, he
looks to Herbert Hoover. Hoover, of course, who had been
very successful in World War One in providing relief to
folks in Europe who are starving as a result of
the war, and he reprised that role for Harry Truman
(35:28):
in nineteen forty six in the years to follow. And
that's having flapp Truman around a little bit here and
crediting him for that he recognized it that it was
important to do that.
Speaker 2 (35:39):
Next slide. All right, let's talk.
Speaker 5 (35:46):
Briefly in a few minutes that I have left here
about other challenges to the rule of law. I happen
to think judicial elections are a major problem. And by
judicial elections, I'm speaking here sort of generically.
Speaker 2 (36:02):
I think there's a sort of ladder of how.
Speaker 5 (36:08):
Big the challenge is depending on the type of judicial
election process, and with partisan judicial elections at the top
of the heat. But I think the distinction between the
partisan and non excuse me, non partisan judicial elections is
receding into history, and they're all becoming partisan. At least
(36:29):
they are all becoming partisan in some states. Only seven
states have no judicial elections of any sort all in
the East. They draw their judicial election process from earlier.
Speaker 2 (36:40):
British and United Kingdom traditions. Fifteen states have.
Speaker 5 (36:45):
Retention elections, and then the remaining twenty eight states have
some judicial election process that's either partisan, non partisan, or
both depending on the court jurisdiction.
Speaker 2 (36:55):
And you're looking at it a different way.
Speaker 5 (36:57):
Thirty eight states conduct some form of elections for the
state Supreme court next light. And of course, as we
know here in Minnesota to the east of US, Wisconsin
just finished they have a off season election cycle for
(37:18):
judicial campaigns. One hundred million dollars was spent in that
most recent Supreme Court race. If you add everything up,
and you know, that's about twice what we spent two
years ago, and you know, you have to ask yourself,
where does it go from here? And we have seen
increased judicial spending in a variety of different ways. And
(37:40):
the problem, of course with judicial elections is it creates
concerns about whether or not the rule of law is
applying here or whether it's being treated as just another
form of partisanship.
Speaker 2 (37:55):
I will say, just to defend my colleagues in.
Speaker 5 (37:57):
Various states that have judicial elections, Minnesota has them, we
have not seen this kind of money spent, but we
have seen at least a couple of election cycles where
there was significant dollars spent.
Speaker 2 (38:07):
Nothing on this order. Mine was.
Speaker 5 (38:10):
In fact, my one contested race in twenty twelve was
an example of this. Quite a bit of money we
spent in that race, and I would never argue that
it actually reflects and unwillingness to abide by the rule
of law. But perception can become reality, and that is
a real problem in judicial elections. Next slide. So there
(38:36):
are some other challenges. I've been saying that I didn't
solve the judicial election problem for you. That's a separate program,
and we could talk at great length about what alternatives
have been discussed. None of them have worked well or perfectly,
and we have a lot to do there. All Right,
some other challenges. How many federal crimes has Congress created?
Speaker 2 (39:00):
We don't know. Nobody knows.
Speaker 5 (39:03):
George Mason University and the Heritage Foundation estimated approximately fifty
two hundred crimes, but there's no comprehensive list, and that
estimate does not include crimes created by rule. The Code
of Federal Regulations now exceeds one hundred and seventy five
thousand pages.
Speaker 2 (39:19):
Now, if I were doing this program live, I would.
Speaker 5 (39:26):
I would have with you or with you here today
as we're visiting my one volume eighteen sixty six copy
of Minnesota Statutes. That was all the laws of Minnesota
in that era. It's now if you add in the
regulations and the sort of other pieces. It's somewhere between
forty and fifty volumes. Actually haven't tried to count the
number of volumes. I probably should do that.
Speaker 2 (39:47):
It's all.
Speaker 5 (39:49):
And if you can't know all the law, are you
undercutting the rule of law? A really good question to
which I don't have an answer. Next question, so, what
about what about crimes that are created by regulation? This
(40:11):
is an example of one that I get from the
very useful.
Speaker 2 (40:16):
X feed, Twitter feed whatever.
Speaker 5 (40:18):
We're calling it the crime of day and this one
is the federal pie and tart divide. You can read
it for yourself. You better make clear about the distinction
between your frozen cherry pie or your frozen cherry tart
because it may well be a current next slide. So,
I think this is one of the least explored, but
(40:40):
maybe the most important challenges to the rule of law,
and that's the collapsing nature of civic education in the
United States, particularly in the elementary and secondary.
Speaker 2 (40:54):
Environment.
Speaker 5 (40:55):
Seventy five percent of Americans can't name all three branches
of government of Americans can't name one First Amendment right,
and the National Assessment of Educational Progress, which is probably
the closest thing we have to a gold standard to
determine the accuracy of or to determine what progress we're
(41:19):
making with history and civics tells us that thirteen percent
of eighth graders were proficient in history and twenty percent
of eighth graders were proficient in civics, and those numbers
haven't changed in twenty five years.
Speaker 2 (41:29):
This is not a new problem. Cod may have made
it worse, but it's a significant issue.
Speaker 5 (41:36):
Lawyers, incidentally, can be very helpful in volunteering and working
with students in this area. And maybe we'll talk about that.
If I have a moment. Next slide, well where do
we go? Where do we go from from here? Next slide?
I want to offer a couple of suggestions here. One
(41:57):
ties back to that last slide that I talked about,
which is on a retail level. Lawyers of all stripes,
all beliefs, you know, whatever political parties you might belong
to or support, or whatever kind of law practice you have,
you're in a really good position to be spending time
(42:19):
with middle school and high school students. If you can
persuade local teachers to let you assist to come in
and talk about some of these issues. Really, it really
makes a difference. There are challenges to that, but I
offer that as one suggestion. But there's some other things
that we maybe want to think about. I'm not going
(42:40):
to talk about administrative law here. I've got a great
quote that if I had a little more time.
Speaker 2 (42:44):
I would read to you.
Speaker 5 (42:45):
That gives you some indication of the problems that it presents.
But we might have an opportunity for some reform here.
Now note the point that I make here about taking
advantage of January twenty twenty nine.
Speaker 2 (43:00):
What do I mean by them?
Speaker 5 (43:03):
In twenty twenty eight, there will be a presidential election
that will result in the election of somebody who is
that there's no second term. It's going to be somebody
who is not currently serving as president. And I think
there might be some advantages here in terms of encouraging
(43:26):
some bipartisan ways of addressing some issues people have. You've
got your own list of issues, Other people have a
list of issues. Let me give you an example of
what I mean by this. In both of the last
two presidencies, the current the current one and the preceding one,
and going backwards, I guess all the way to the
(43:48):
Clinton years, there have been concerns about presidential exercise of
the pardon power. It seems to me that you could
put together a pretty good argument that would be, if
we want to make some changes in the form of
a constitutional amendment, this would be the time for Congress
to pass such a thing and send it to the states.
(44:11):
For example, Robert Gray Boyce, who's a retired law retired
I should say retired professor from Columbia I believe, originally,
has given an example of this. He says, well, let's
have a ninety day public comment period before any pardon
can take effect, and that would take you back to
the end of October. So controversial pardons, there'd be a
(44:35):
public discussion and a public referendum on whether or not
the voters are offended by any particular pardon. Now, maybe
you have to run that back to one hundred and
twenty because of increasing use of early election provisions. But
that's an example of an idea that maybe you could
sell both political parties knowing that nobody knows what party
(45:01):
will be in control of the White House. Maybe true
of some administrative procedure issues and altho ethics and disclosure provisions.
Next slide, So, where I've sat on the bench for
nineteen years, nineteen years and change in a building designed
(45:23):
by Cask Gilbert, who also designed many years later the
United States Supreme Court Building. If you ever get a
chance to see the Minnesota Courthouse in the United States
Supreme Courthouse to compare them, there actually are some similarities,
but the door that you come in and out of
that courtroom, in addition to having a clock that most
of the time actually works. There's a line from one
(45:47):
of John Locke's many writings, in this case his second
Treatise on Government, where it says, where law ends, tyranny begins.
And I thought that was a great way to end
this seminar. All of us who are participating here today
are believers in the rule of law. We may have
varying opinions about how do we go about preserving it,
(46:11):
but when we consider the roots, how it's been used,
and the challenges that we've faced over the last two
hundred years, I'm actually an optimist that we're going to
continue to prosper, and we're going to continue to prosper
because the rule of law is going to continue to
(46:32):
be an important process for us. In that effort. Much
more could be said about this topic but I've been
told to quit at twelve forty nine.
Speaker 2 (46:43):
It is now twelve forty nine. So thank you all
for being with us over this period of time.
Speaker 5 (46:48):
And I'll take whatever questions Professor McGinnis sends my way.
Thank you justsin Center for the truly informative and excellent presentation.
So we do have some questions in the chat. So
I'm going to go in the Q and I should say,
I'm going to go through and take a look at
I'll pick this one. And independent judiciary is meant to
(47:09):
guarantee impartiality, and in practice the pressures of judicial efficiency
and docket management can work against that ideal, especially when
courts face limited courts face limited time and resources. How
do you see the balance between public perception of the
court's role and the court's actual operations being improved to
(47:29):
strengthen confidence in its impartiality and effectiveness. And it says
capital C courts, So I presume it's referring to the
US Supreme Court primarily, Well, yeah, and I don't I
think the volume of case law or the volume of
matters that courts have to deal with either of the
(47:49):
United States Supreme Court. But also I want to focus
on our district courts because the reality is that when
most citizens have a legal dispute, I mean that's there,
that's their window into the rule of law. I mean,
how was the case handled? What do they have a
sense that it was handled fairly? And a lot of
(48:10):
that is driven by some of the issues that the
questionner mentions here, which is when I started practicing in
eighteen seventy nine, you would have the opportunity for, you know,
pretty long conversations with district court judges, some rejudgment motions,
other motions, but also informally, in many respects, a lot
of that has vanished as the number of cases that
(48:33):
courts are asked to decide. And so I think what
the questioner is raising here that has a corrosive effect
on the rule of law. And I think the answer
it really is that at the retail level, we've got
to we've got to be explaining to legislators and candidates
for governor because it's mostly a state court issue, I think,
(48:56):
but it's it's also a federal court issue. But I
see it as a state court issue because that's where
most of these cases get decided. And you've got a
contract case a divorce, questions about the whether or not
children were cared for properly. These are the ways in
which people form opinions about courts. And if they see
the process as we're just part of an assembly line
(49:18):
to get this file moved from here to there, that's
terrible for the image of the rule of the rule
of law. And the only way to deal with that
is more resources and more judges. And that's going to
be as popular as you might expect with legislators. There
are no votes to be had for legislators by providing
additional funding to courts. I can tell you that after
(49:38):
spending twenty five years visiting with legislators on that very topic.
Speaker 4 (49:42):
Thank you, Jessics Ederson appreciate that response. So another question
we have is regarding in ray querying and just asking
if you know whether some of the German saboteurs were
executed before the court's decision rejecting their claims before that
was a publicly issued opinion.
Speaker 2 (50:00):
The answer to that, you know, I don't recall.
Speaker 5 (50:03):
To be honest, I would be I would be guessing
on that and I should know the answer to that question,
and I don't. I think I think the executions occurred
after the opinion came out, but I'm not one hundred
percent certain somebody will look it up and tell me
if I'm wrong.
Speaker 4 (50:19):
Thank you very much. I'm not sure the answer to
that either, so I appreciate that. Another question have is
do you agree that the need for congressional term limits
is the most important amendment we need, I guess a
constitutional amendment. Do you think that relates to what we're
talking about with regard to rule of law?
Speaker 2 (50:37):
I have had I've had varied opinions on this.
Speaker 5 (50:41):
You know, I had some exposure to parties in politics
forty years ago, thirty five years ago. I think expansive
term limits probably are a good idea. I think some
of the term limits that you see proposed six years
for the House and two terms for the Senate run
the risk of handing over operation of the government to
(51:03):
the permanent administrative class.
Speaker 2 (51:06):
And so I would say that if you if you.
Speaker 5 (51:09):
Start talking about maybe twelve years in the House and
maybe three terms in the Senate or something along those lines,
I could see it as very beneficial. But the problem is,
I think the institutional problems with Congress are are it's
increasing parliamentary approach as opposed to institutional loyalty. You know,
(51:36):
there's we can always overstate the amount of institutional loyalty.
But Roosevelt had all kinds of problems in the in
the example that I cited, with members of the House
and Senate who were not willing to go along with
changing the Supreme Court, even though they were in the
same party. Would you get that same pushback today. I
(51:57):
don't know the answer to that question, and I don't know.
I don't know how you build that institutional loyalty. One
of the reasons why I think maybe starting slowly with
some of these ideas that maybe you can get going
with more simple concepts might be many of some merit.
Speaker 4 (52:13):
Thank you very much for that next question I would
to pose. One of our attendees has asked, to the
extent that courts increasingly weigh in on political questions and
appear to resolve cases on political bases. Is not some
level of political accountability, such as via retention, election or
(52:34):
recall justifiable.
Speaker 5 (52:37):
That is a great question, and it is a very
fair question. And I have to tell you that when
I was busy arguing, I was a member of the
Qui Commission. As you referenced in your over generous introduction
to me and the commission, had we came very close
to passing this thing was a provision to move to
(52:57):
a retention model in minnesot to combine with a very
robust performance evaluation process. Couldn't quite get it across the
finish line. But one of the best arguments against that
process is what you have, just what you've just cited here,
which is an increasingly complex world. If we're if we're
(53:17):
asking judges to make or judges take to themselves to
make political decisions, why isn't there political accountability?
Speaker 2 (53:26):
And and I, you know, I think that's a I think.
Speaker 5 (53:29):
That's a great question, and it's a great argument against
the argument that I just made, which is.
Speaker 2 (53:35):
I think I think.
Speaker 5 (53:37):
The threat to judicial impartiality is greater than the threat
of absence of political accountability. But people of good faith
and intelligence can disagree on that question. And and all
I can tell your question there is there. It's he
or she is not wrong that it's an issue.
Speaker 2 (54:00):
Thank you for that. Kind of a corollary.
Speaker 5 (54:02):
One way to deal with that too might be when
you talk about term limits. For example, in Minnesota has
a mandatory retirement of age seventy for judges, and I
actually think again that may be that may be that
may be a way to maybe if maybe if you
don't have people serving for forty five years or whatever,
maybe maybe that helps that process a little bit.
Speaker 2 (54:23):
But I don't know. No, thank you for that.
Speaker 4 (54:25):
There's actually a corollary type of question that someone'supposed that
should we maintain life tenure when justices make political decisions
despite their job security, referring to federal life tenure under
Article three? And yeah, that's this idea that you know,
the idea of the installation from review and be able
to have life security promoting independence.
Speaker 2 (54:48):
The ideas are supposed to be free of political pressure.
Speaker 4 (54:50):
But if you're actually doing making decisions, or it appears
that from your opinions that you're writing from a very
much a policy driven political standpoint, perhaps that that's one
reason people can call that into question.
Speaker 5 (55:03):
And this becomes is this a potential area where I
suspect there's too much division to actually get here. But
you know, how you to construct term limits? For example,
if it's a one fifteen or twenty year term for
a state Supreme Court justice, And I think there's at
(55:24):
least one state that has something like that. You have
to think about which one it is right off hand,
but you know, maybe there's an argument for that. The
problem with you know, retirement ages is is that you
then put the political parties in the field of well,
then we're going to just make sure we appoint judges
(55:45):
who are younger and younger to maximize their time on
the bench. Now, one thing I just I want to
stress with folks when we talk about these questions. We're
debating this as if this is something new. If you
go back to Roosevelt's appointments to the court, I mean,
who does the appoint Hugo Black? You know Black as
a loyal senator for Roosevelt's new deal. He turns out
(56:11):
or of course, there are some aspects of his background
that we've we've discussed that are also somewhat challenging, but
he turns out to be a somewhat complicated member of
the court in terms of his adherence to to sort
of democratic small the political party principles. He turns out
to be perhaps not exactly what Roosevelt had in mind,
(56:34):
but that was what he was doing, was appointing somebody
who he thought saw the world that he did. So
so these questions about judicial appointments are not new, and
they are questions that I mean, I don't have any
independent research into this, but I'm very certain that when
ros when Lincoln was looking at appointments to the Supreme Court,
(56:55):
he was interested in appointing people who thought dred Scott
was a really bad idea. And I would note that
one of his appointments was David Davis, his judge that
he regularly appeared in front of in Illinois and who
was the chair of his.
Speaker 2 (57:12):
Chair of his campaign.
Speaker 5 (57:14):
At the Republican National Committee in Chicago in eighteen sixty
and famously, when Lincoln gave his stuffy instructions to David
Davis that he was to make no deals in his name,
Davis's response to somebody who inquired about whether or not
Davis was going to follow Lincoln's instructions was to say,
(57:34):
Lincoln's not here.
Speaker 2 (57:36):
So, I mean, some of these things are not new.
That's very good. Well, ex so we're now a lot
of time and just so.
Speaker 4 (57:45):
Much appreciate Justice enters to your presentation and thank you
for everything you've done through your career through giving back
through sharing ideas about from your experience and wisdom. It's
been a privilege to moderate this program for you. I'll
give it back to Kayla.
Speaker 2 (58:00):
Maleko those thanks.
Speaker 3 (58:02):
Really appreciate you both taking this section of your days
and sharing your expertise and insight. Thanks also to our
audience for joining and participating. We welcome listener feedback by
email at Fedsockforums at fedsock dot org, and as always,
keep an eye on our website and your emails pronouncements
about other upcoming virtual events. With that, thank you all
for joining us today. We are a journed.
Speaker 1 (58:22):
Thank you for listening to this episode of fedsoc Forums,
a podcast of the Federal Societies Practice Groups. For more
information about the Federal Society, the Practice Groups, and to
become a Federal Society member, please visit our website at
fedsock dot org.
Popular Podcasts
CrimeLess: Hillbilly Heist
It’s 1996 in rural North Carolina, and an oddball crew makes history when they pull off America’s third largest cash heist. But it’s all downhill from there. Join host Johnny Knoxville as he unspools a wild and woolly tale about a group of regular ‘ol folks who risked it all for a chance at a better life. CrimeLess: Hillbilly Heist answers the question: what would you do with 17.3 million dollars? The answer includes diamond rings, mansions, velvet Elvis paintings, plus a run for the border, murder-for-hire-plots, and FBI busts.
Crime Junkie
Does hearing about a true crime case always leave you scouring the internet for the truth behind the story? Dive into your next mystery with Crime Junkie. Every Monday, join your host Ashley Flowers as she unravels all the details of infamous and underreported true crime cases with her best friend Brit Prawat. From cold cases to missing persons and heroes in our community who seek justice, Crime Junkie is your destination for theories and stories you won’t hear anywhere else. Whether you're a seasoned true crime enthusiast or new to the genre, you'll find yourself on the edge of your seat awaiting a new episode every Monday. If you can never get enough true crime... Congratulations, you’ve found your people. Follow to join a community of Crime Junkies! Crime Junkie is presented by audiochuck Media Company.
Stuff You Should Know
If you've ever wanted to know about champagne, satanism, the Stonewall Uprising, chaos theory, LSD, El Nino, true crime and Rosa Parks, then look no further. Josh and Chuck have you covered.