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Justice Thomas Delivers Speech During Education Conference

2/24/2020

February 24, 2020

Illinois Supreme Court Justice Robert R. Thomas delivered the following speech on February 5 at the Education Conference in Lombard:

It is an honor for me to be with you this morning, and I am grateful for the opportunity to speak with you for few moments.

For the past two decades, my colleagues and I on the Illinois Supreme Court have focused a tremendous amount of time, energy, and resources on matters relating to professionalism and civility in the legal profession.  In that time period, we have seen the establishment of both the Illinois Supreme Court Commission on Professionalism and mandatory continuing legal education for both attorneys and judges.

And in connection with these initiatives, we on the court are often called to speak to attorneys and law students about their professional responsibilities.

About the standards of conduct to which they are expected to conform.

About how they are to conduct themselves before judges, among other lawyers, and most importantly, with the clients they represent.

About what it means to be an officer of the court, and to hold a position of public trust.

But very rarely do we speak to judges about these same things.  And that is what I intend to do today.

This is a room full of judges.  And there is not one of us here, myself included, that could not benefit from an occasional reminder of the virtues to which judges are called when we raise our right hands, swear the oath, and don the black robes of our office.

So I invite all of you to listen closely, to consider your own performance as an officer of the court, and to ask yourself, as I briefly review what are really very elementary principles, where am I falling short?  Where have I lost sight of the tremendous privilege, the tremendous trust, that comes with serving the judiciary?  Where have I become lazy? Where am just I going through the motions?
In short, where can I do a better job of embodying the essential virtues that define the judicial office?

If each of us here today can identify just one shortcoming, one area for improvement, one virtue that we can more aggressively pursue, our brief time this morning will have been more than worth it, and the citizens of this State will enjoy the benefit of a more diligent, more virtuous, judiciary.
For a guide to our discussion, we need look no further than the first paragraph of the preamble to the Code of Judicial Conduct, which succinctly catalogs each of the essential virtues to which we as judges are called.  It reads:

"Our legal system is based on the principle that an independent, fair and competent judiciary will interpret and apply the laws that govern us.  The role of the judiciary is central to American concepts of justice and the rule of law.  Intrinsic to all provisions of this code are precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust and strive to enhance and maintain confidence in our legal system.  The judge is an arbiter of facts and law for the resolution of disputes and a highly visible symbol of government under the rule of law."

The first virtue identified here, not surprisingly, is independence.  Indeed, if a judge is nothing else, he or she must be independent for our system of justice to function.

The framers of our constitution understood this well.  Writing in Federalist 78, Alexander Hamilton argued that:

"[T]he complete independence of the courts of justice is peculiarly essential in a limited constitution."

The reason for this, Hamilton explained, is that:

"There is no liberty, if the power of judging is not separated from the legislative and executive powers ***.  Liberty can have nothing to fear from the judiciary alone, but would have everything to fear from its union with either of the other departments."

So institutionally, an independent judiciary is one that is neither subordinate to nor in alliance with the other branches of government.  This is easy enough to understand and it is something we all were taught in high school civics, or at least in Con Law 1.

But what does this mean for the individual judge, on an ordinary day in chambers, deciding one particular case?  I'm guessing that very few, if any, of us consciously perceives ourselves as an instrument or ally of either the Governor's office or the General Assembly.  We just don't think that way, and in fact most of us guard jealously the judiciary's independence from the other two branches of government.  So in this regard, I believe we are all surely "independent."
So I think independence means something more when we're talking about individual judges, deciding individual cases.

An independent judge is one who is free from outside influence.  Again, this sounds like basic stuff, and all of us no doubt agree with this principle.

But it's not always so easy.  We live in a time when major newspapers openly, and without any  pretense, publish editorials calling upon the judiciary to rule one way or the other in pending cases – not because the law requires it, but because the public, or at least the editorial board, demands it.

We live in a time when watchdog groups wage polished and professional advocacy campaigns around hot-button policy issues that are sure to make their ways into courts.
We live in a time when a judge's vote in a mere handful of high profile cases can literally make the difference between a million dollar campaign to retain her, or a million dollar campaign to unseat her.

In short, we are living in a time when judges are frequently sent a very public and very direct message – that the special interests are watching, and the judge better rule the "right" way.
And I would be lying if I said that it is easy to ignore such pressure.  On the contrary, often times it is impossible to ignore such pressure, short of never reading a newspaper, never turning on the TV, and never getting online.

But again, virtue demands that we tune it all out.

Media campaigns like these can be effective only if we as judges treat our offices as an entitlement, as something we have the right to hold for as long as we desire, as something that exists to serve us.

But the dirty little secret, the thing that the editorial boards, and the opinion columnists, and the advocacy groups don't seem to understand, is that they have it exactly backwards.

The bench is not here to serve us – we are here to serve the bench.  And by definition, that demands a loyalty to something greater that the next election, greater than job security, greater than our own personal interest.

Independence demands that, when we put on the judicial robe, we surrender all claims to self, in favor of any unyielding commitment of the rule of law.

It is sad but true – in the current climate, fidelity to the law could cost a judge his job.  To many, fidelity to the law in spite of the popular will is no longer seen as courageous or virtuous, but as a sign of disqualification for judicial office.

And the pressure to bend can be tremendous.  But virtue demands, once again, that we resist.
I invite all of us, then, when such cases come along, when the public drums begin beating, and more and more voices begin calling on us to rule this way or that, to simply tune it out.  To turn our attentions away from ourselves and our livelihoods and our job security, from our desire for approval or popularity, and toward the greater principles that we have sworn to defend and uphold.

The next virtue we find in the Preamble to our code is fairness.  A judge, the Preamble declares, must be fair.

In many ways, the concept of fairness is folded into the concept of independence.  Indeed, a fair judge is by definition one who is free from outside influence.

But fairness means more than this.  It means a judge free from bias, free from prejudice, and free from agendas.

There is no denying that we all come to the bench with pre-existing values, preferences, and priorities.  Judges are human beings, and we all see the world in a certain way.

Some of us are former prosecutors; some of us are former public defenders.

Some of us were plaintiff's lawyers; some of us worked for defense firms.

Some of us are from Chicago; some of us are from downstate.

Some of us are Republicans; some of us are Democrats; and some of us are independents.

The point is, we are all different, with different experiences and different values.

But it is our challenge – our obligation – to ensure that those values never intrude upon or influence our decision making.

In all levels of the system—but most especially at the level of review—we will encounter cases where our personal values are at stake.  Where it's Republican versus Democrat, downstate versus Chicago, labor versus management--and only one side can win.

And the outcome is literally in our hands.

When such cases come along, we must constantly assess out motives.

How do we approach those cases?  Are we presumptively sympathetic to one side or the other?  Are we looking for ways that our side can win?  Are we applying the same degree of scrutiny to both sides' arguments?

The temptation is there.  To play lip-service to equity, but in reality to have our thumb pressing ever so slightly on the scale of justice.

And virtue demands that we resist temptation at all cost.

Whether that means hiring clerks that disagree with us, or inviting constructive input from colleagues who disagree with us, or just making a personal commitment to ensuring that each side gets as much of my attention, as much of my time, as much as my scrutiny, as the other, it is essential that we all remain vigilant.

The principle itself is basic, and it's one we all readily agree with.  But like all principles, it remains effective only as long as we remain faithfully, and actively, committed to it.

Written above the door to the Supreme Court Chamber in Springfield is the phrase "Audi Alteram Partum," which translated from Latin means "hear the other side."

Those four words encapsulate the concept of fairness.  Whatever preconceived notions we have, whatever private values we might hold, whatever we might have heart in the press, we as judges our obligated to hear the other side – to hear it openly, to hear it intently, and to hear it free from any presumption, one way or the other.

The next virtue I want to consider is competence, for our Preamble declares that "[o]ur legal system is based on the principle that a*** competent judiciary will interpret and apply the laws that govern us."

So what does it mean for a judge to be competent?

Obviously, it means that the judge possesses the essential skills necessary to perform the judicial function – a knowledge of substantive law and procedure, a professional and courteous demeanor, a commitment to fairness and independence.

But it also means a willingness, indeed a desire, to constantly improve in each of these areas.  Never to rest on the achievements that brought us into office, or to treat the judicial office as the last stop on our journey of professional development.

Speaking to a group of Harvard undergraduates in 1886, Oliver Wendell Holmes advised that "No result is easy which is worth having.  Your education begins when what is called your education is over."

For judges, continuing education is inherent in the job.

In 1996, the Illinois Compiled Statutes filled 5000 pages.  Today, it fills almost 15,000.  In its last full session, the Illinois general assembly enacted almost 1500 new laws.  Last year, the Illinois Supreme Court issued close to 100 decisions, while the Appellate Court issued nearly 1000.
At the same time, litigation itself is becoming every more complex.

Commercial litigation is no longer confined to breach of contract.  On the contrary, today's commercial litigators must also be versed in employment discrimination law, environmental law, banking and finance, securities law, bankruptcy law, and internet law.

Personal injury practice has grown into a complicated matrix of sub-specialties, with entire practices devoted exclusively to aviation law, toxic torts, psychiatric malpractice, managed care liability, consumer class action, or employment discrimination.

Even criminal defense work has expanded far beyond the material covered in our first year criminal law and procedure courses.

Today's criminals are not just thieves and drug dealers and murderers.  They are insider traders, environmental polluters, corrupt public officials.

The use of the internet for the delivery and receipt of child pornography has introduced commerce clause and first amendment principles into felony court proceedings.

And DNA-based post-conviction practice has become a specialty in and of itself.

Then there's technology, which is advancing at a blinding pace.

Electronic filing.  Video arraignment.  Electronic Court Reporting.  Power Point.  Web casting.  Video conferencing.  The list goes on and on.

This is a lot to keep up with, and no once can be expected to stay on top of everything.

But as judges, we have an obligation to stay on top of those cutting edge matters that relate to our specific call or docket.  To ensure that we are keeping up with the latest development in the law, and the latest innovations in technology.  To maintaining not just a basic, but also a relevant and ever-increasing level of competence.

Yes, attorneys and experts will educate us where necessary.  But that does not relieve of us of our obligation to stay current – to preside over 21st Century cases with a 21st Century perspective, and a 21st Century competence.

So I ask everyone here, myself included, what concrete steps can we take today to assure that, when we assume the bench tomorrow, we will be better informed, better equipped, and better positioned, to decide the cases that come before us?

The last virtue I would like to examine, as set forth in the Preamble to our Code of Judicial Conduct, is respect.

Because when it comes to respect, the Code is emphatic:

"Intrinsic to all provisions of this code are precepts that judges, individually and collectively, must respect and honor the judicial office as a public trust, and strive to maintain confidence in our legal system."

In this one sentence, we as judges are called to exercise respect on at least three distinct levels.
First, we are to exercise respect with our colleagues.  Again, something that is easy to assent to in the abstract, but that often challenges us in reality.

On my court for example, we face some of the most difficult and consequential legal questions that arise in this State, from O'Hare Airport expansion to tort reform to ballot access in the Chicago's mayor's race.

We see suits against tobacco companies and gun manufacturers.

We see unspeakable crimes, and we see miscarriages of justice.

And for every aggrieved party, we represent the last, best hope for justice.

In such a climate, where the stakes are high and the pronouncement is final, it is not surprising that sometimes passion eclipses reason.

That winning the argument becomes more important than getting it right.

We all have egos, and we've all been there.

And yet it is essential that as eager as we are to persuade, we are just as willing to be persuaded.

The disposition of difficult cases demands a free and open exchange of ideas.

It demands that we respect our colleagues' viewpoint, even when—especially when—it differs from our own.

Ours is a position of service, not of power.  The decisions we render are not personal achievements.  They are the law, and they belong to the people of Illinois.
Each of us owes a duty both to our colleagues and to the public to ensure that the best possible decision is reached, and that every argument is given full and fair consideration.

My colleagues and I are committed to ensuring that our deliberations are governed by collegiality and respect, and that rancor and animosity remain unwelcome in the conference room.
Lincoln wrote that, to rid the bar of immoral men a "a moral tone ought to be infused into the profession, which should drive such men out of it."

I challenge everyone here today to heed Lincoln's call, to examine our own interactions with and attitudes toward our colleagues, and to renew with me today an unwavering commitment to cultivating a climate of respect in our courtroom, in our chambers, and in our conference rooms.
But respect is not reserved solely for our colleagues, or confined only to our conference rooms for chambers.  On the contrary, we must always exercise respect, patience, and courtesy to those who appear in our courtrooms, whether attorneys, parties, witnesses, or jurors.

Like it or not, we are the face of the judicial system to all of these people.

And just as our private deliberations can often become impassioned, so too can our public proceedings.  Oral argument, cross-examination, closing arguments, voir dire, contested motion hearings.  All of these have the potential to inspire not only passion, but also impatience and sometimes even bitterness, among the participants – attorneys, witnesses, and judges alike.
Our job is to set a tone of respect, to be the calm amidst the storm, to voice of reason and sobriety when things begin to get heated.

So again, I invite us to ask ourselves, when these moments arise, do we rise above and infuse Lincoln's moral tone into the proceedings, or do we allow ourselves to be provoked and simply shout louder?

We can all lose our cool.  But we are called at all times to exercise respect toward those who appear before us, even when – and especially when – their own respect has broken down.

And I invite all of us here to recommit ourselves, over and over again if necessary, to doing so.

Finally, we are called to exercise respect for the legal system itself.  But really, there is very little I have to say about this point, because if we fulfill our obligations to exercise respect toward our colleagues and respect toward those who appear before us, then we are respecting the system itself.

Again, we are the face of the judiciary.  And the greatest respect we can show for the system is to do all that we do with a visible and pronounced attitude of collegiality and respect.  In doing so, we bring honor to ourselves and to those around us.  But most importantly, we bring honor to the very system that we have sworn to serve.

In conclusion, I want to make something very clear.  By focusing today on judicial virtues, and by calling on each of us here to examine our own records of success and failure in exercising these virtues, I am not in any way suggesting that we have reached a crisis point, or that I am concerned about the general culture within our ranks.

On the contrary, I – and I believe I can speak for my colleagues on the court – am extremely proud of this state's judiciary, and when it comes to collegiality and professionalism, I would happily put our judges up against any in this nation.

But that does not mean that there is no room for improvement.  Because there is always room for improvement.

Virtue is a destination that is never fully reached.  It's a perpetual work in progress, and the best we can hope for is that today we are a bit better at it than we were yesterday, yet not quite as good as we will be tomorrow.

But successful progress demands self-examination, and that is what I am calling all of us to do.

Not just today, and not just tomorrow.  But every time we go to work in service of the judiciary.

With virtue at the front of our minds – with independence, fairness, competence, and respect the foremost priorities on our docket – we will ensure that our oaths are fulfilled.

That we are faithfully serving the office of judge, and the people of the great State.

Now before I conclude, I just want to take a moment and invite all of you to make the absolute most of this week's conference.

Over the course of these days, you will have the opportunity to choose among a wide array of courses, designed to ensure that everyone's specific educational goals are realized.

Whatever courses you choose, I am confident that you—and more importantly, the parties who appear before you—will benefit greatly from the experience.

I therefore invite you to fully dedicate yourselves over these days to listening, and to learning.  And please—ask a lot of question.

This conference should not be an exercise in speech-making and lecturing.  Present company notwithstanding.  Rather, it should be a dynamic exchange of ideas and information.

And this applies not only in the formal courses and seminars, but also during the social hours, over meals, and in the hallways.

Each of us brings to this gathering a valuable perspective, shaped by our unique experiences as judges.  If you sit in Cook County felony court, seek out a felony judge from Alexander County or Wayne County and compare notes.

If you sit in a reviewing court, spend some time with a circuit judge.  Ask her what the real world is like.

These informal exchanges and lessons are every bit as important as the formal ones.  From them, we take away not only invaluable insight gained from experience, but also a professional and personal bond that reminds us that we are all part of the same system, all committed to serving the cause of justice.

Writing in Federalist 82, Hamilton described the State and Federal judiciaries as "kindred systems."

Yet he also warned that "only time *** can mature and perfect so compound a system, can liquidate the meaning of all the parts, and can adjust them to each other in a harmonious and consistent WHOLE."

In many ways, the same can be said of the State judiciary.  We are undoubtedly a single court system.  But at the same time, we are divided into several distinct systems—circuit courts, appellate districts, the supreme court.

And we come from places as far away as Waukegan and Carbondale, Quincy and Danville.

And as often as we work together, it can sometimes feel like we are working at odds.

Trial judges sometimes view reviewing court as the enemy, or at least as somewhat aloof.

And reviewing courts can sometimes forget what it's like to render 100 decisions a day, instead of 100 decisions a year.

And that's why I am grateful for gatherings such as these.

They help to forge a spirit of collegiality, respect, and cooperation among the different judges of this State.

Or as Hamilton might say "to mature and perfect the system," "adjusting them to each other in a harmonious and consistent whole."

And so, on behalf of the entire Supreme Court, let me once again thank you for your attendance today and for all of your efforts, both in years past an in years to come.

I am confident that, as in the past, this year's Education Conference will be a success.

Thank you.