Judicial Activism and Restraint

by Leona Egeland Siadek, Vice President, Government Relations

Until relatively recently, judicial nominations and elections were exclusively the province of political insiders. The processes of appointment, retention, and election rarely were of any interest to voters, the press, or the general public. The result is that those appellate court or state supreme court judges who were elected, or who ran in retention elections, did so without fanfare and often without campaigning. Voters rarely knew who the judges or candidates were. Newspapers rarely commented on the elections. TV ads and direct mailers rarely provided information about judicial elections. 

When called upon to vote, most voters either skipped that  position on the ballot, guessed at a name conveying something familiar to them, or automatically voted “yes” to retain experienced judges. Not the fullest exercise of democracy, but perhaps inevitable in a system where judges are supposed to be shielded from political pressure to allow them to decide cases without bias. 

Gradually, though, judicial elections drew attention from interest groups seeking to shift courts to one side of the political spectrum or the other.  Although still largely invisible to the public, judicial elections started becoming more hotly contested and more expensive for incumbents and candidates.  As the races became more expensive, the pressure on judges and candidates from potential donors became more intense.

The notion that judges make decisions impartially and without influence from political parties disappeared forever in the minds of Americans as we watched the actions of both the Florida Supreme Court and the U.S. Supreme Court in the counting of Florida’s votes in the 2000 Presidential Election.  Americans awoke to the reality that judges and justices are affected by outside political pressures. 

Since that prolonged and dramatic controversy, voters have become far more interested in the justices of state supreme courts and judges in courts at all levels. People are interested to a far greater extent in the judicial records and philosophical and political leanings of their justices. Not only are people interested, but they are also largely dissatisfied. 

A September 2005 survey conducted by the Opinion Research Corporation for the American Bar Association (ABA) showed more than half of Americans to be angry and disappointed with the nation’s judiciary. Respondents agreed with the statement that “judicial activism” had reached a crisis stage. They said judges were “arrogant and out-of-control and unaccountable.” The majority thought that judges who ignore voters’ values should be impeached. There was little residue of general respect found in the survey results, and this surprised the ABA. 

Most judges come from the ranks of the trial bar and have experience in specific areas of law. A judge’s initial choice of legal endeavor often reflects a political and social philosophy. Hypothetically, if the lawyer practiced corporate law and was involved in party politics, he or she might be noticed by a conservative governor; or, if he or she were a personal injury lawyer and active in party politics, there might be a nod from a liberal governor to a judicial post. This is simplistic, of course, but frequently is the case. So why would anyone expect a judge to be a “blank slate”? 

Two terms used today to describe judges depict judicial philosophy as a spectrum with judicial restraint at one end and judicial activism at the other. Restrained jurists do not take on the mandate to act as policymakers. They traditionally defer to the decisions of the elected branch of government as long as the policymakers stay within the limits of their powers and of the Constitution.  An activist jurist is one who strives to interpret the Constitution and the laws in consideration of the vital needs of contemporary society, and to step in and try to meet these needs when the elected officials seem to fail. Often judicial decisions are decided by judges in the middle of the spectrum. 

The point is, judges have views, and judges run for office.  Important 2006 contests for judges will be before us. The outcomes for state supreme court positions are often more important in terms of medical liability than the more visible campaigns for openly political offices. It behooves each of us to learn about our state’s highest court and the people who serve on it as well as those who are candidates. Your Government Relations Department will strive to inform you of key races via e-mail and The Doctors Company’s Web site. Your critical DOCPAC dollars will also be used to help deserving judicial candidates. 

Federal and State Actions 

H.R. 420 (Smith of Texas), the “Lawsuit Abuse Reduction Act of 2005,” is still alive. Passing the House on October 27, it is expected to be taken up by the Senate Judiciary Committee sometime in 2006. The bill proposes increasing sanctions against attorneys who file lawsuits that are deemed frivolous. 

S. 1337 (Enzi of Wyoming), the “Fair and Reliable Medical Justice Act,” is also alive and should be heard by the Senate Health, Education, Labor, and Pensions Committee in 2006. The legislation provides federal grants to 10 states to establish one of three alternative reform models: early disclosure and compensation, administrative determination and compensation, or special health care courts. 

Florida voters approved a state constitutional amendment in November 2004 to establish an attorney contingency fee schedule in medical malpractice litigation. The plaintiffs’ bar began circumventing the law by asking clients to waive this provision of law so the lawyer could collect higher fees. Responding to a petition challenging this circumvention, the Florida Supreme Court issued a one-page unanimous ruling ordering the Florida State Bar Association to establish new rules allowing attorneys to bypass the cap on contingency fees. They mandated that clients be informed that the Florida state constitution provided for such a cap on attorneys’ fees. 

The Wisconsin state legislature passed a bill last fall to restore the cap of $445,775 in noneconomic damages that the state supreme court found “arbitrary and unconstitutional” in August of 2005. The new bill called for a cap of $450,000 for adults and a $550,000 cap for minors. A separate piece of legislation limited double recovery for expenses already covered by other forms of insurance. The governor vetoed both measures, stating that the new law was not different from the overturned  law. An override attempt in January did not muster the required two-thirds vote.