Indiana Law Review Four Big, Dumb Trends Affecting State Courts Randall T. Shepard* The richness ofthis law review's annual survey issue rests in the assessments ofdeveloping substantive law described by scholars from our profession's three leading elements: practitioners, judges, and law faculty. Our task as lawyers in considering and re-considering statutes, common law, and constitutions in the course of working through new issues and new facts is the great intellectual challenge of being a lawyer. Still, the debate over "what the law is" or "what the law should be" occurs against a larger backdrop ofa changing society and evolving legal structures. On many days, our profession n aspires to focus on close analytical work, lifting up the most elegant examples of jurisprudence. On other days, we proclaim ourselves fans of simplicity. In considering the courts, the profession, as institutions, this Article takes the latter course. I adopt here one ofthe strategies of a friend who has built a remarkably successful career in the investment business, Gregory C. Donaldson of Evansville, hidiana. This splendid run has flowed from a variety ofanalytical approaches. For a time, at least, he fashioned some of his recommendations to clients from research under a theory he called "big, dumb trends." He focused on forces that are transforming society at the most macro level, trends that are right in front ofus and quite obvious to all, but which have implications most of us have not thought through yet. There are at least four such trends with important implications for American courts. I. The Ideal OF Impartiality The first big, dumb trend is one of great consequence, one that places us at risk of losing something valuable: the ideal of judicial impartiality. The defenders of impartiality are far too often losing against lawsuits that seek to obliterate the rules protecting judicial neutrality from damage in the course of judicial campaigns. These cases have the potential to carry the nation back to a time when too many places chose judges by putting the campaign contribution bucket out on the porch (or on the back row of the courtroom) to see who came along with the most money. Throughout much ofthe twentieth century, the legal profession advanced with substantial success a variety of tools aimed at sustaining courts as fair tribunals.' Now, there is a renewed debate about * ChiefJustice ofIndiana. A.B., 1969, Princeton University; J.D., 1972, Yale Law School; LL.M., 1995, University of Virginia School of Law. 1 . Canon 30 admonished that: A candidate for judicial position should not make or suffer others to make for him, promises of conduct in office which appeal to the cupidity or prejudices of the appointing or electing power; he should not announce in advance his conclusion oflaw on disputed issues to secure class support, and he should do nothing while a candidate to create the impression that ifchosen, he will administer his office with bias, partiality or improper discrimination. 534 INDIANA LAW REVIEW [Vol. 43:533 whether courts and judges are simply politics by another means, or by contrast, whether they are places where dispute resolution occurs according to a minimum of force and a maximum of reason.^ Those are two very different ideas. This competition ofopposing ideals is hardly confined to state court settings. When Judge David Hamilton appeared before thejudiciary committee ofthe U.S. Senate in the spring of 2009 for his confirmation hearing for the U.S. Court of Appeals for the Seventh Circuit, the Senators posed merely four questions.^ But the nominee appearing just before Judge Hamilton, a district judge from Maryland whom President Obama nominated for the Fourth Circuit, became the feature story ofthe day by virtue of a grilling from Senator Russ Feingold. The theme of the Feingold inquiry was illustrated by a thread that ran: Are you somebody we ought to confirm, in light of the fact that you once served on the board of directors of the Foundation for Research on Economics and the Environment?"^ While holding judicial office he should decline nomination to any other place which might reasonably tend to create a suspicion or criticism that the proper performance of his judicial duties is prejudiced or prevented thereby. Ifajudge becomes a candidate for any office, he should refrain from all conduct which might tend to arouse reasonable suspicion that he is using the power or prestige of his judicial position to promote his candidacy or the success of his party. See Report of the Forty-Seventh AnnualMeeting of the American Bar Association 768 (1924) (Canon 30). 2. See Curt Anderson, States, Congress Wrestle with Judicial Bias Rules, Associated Press, Feb. 19, 2010, available at http://abcnews.go.com/US/wireStory?id=9884470; Robert Barnes, Court Ties Campaign Largess to Judicial Bias, Wash. Post, June 9, 2009, available at http://www.washingtonpost.com/wp-dyn/content/article/2009/06/08/AR2009060801366.html; Brian Witte, O 'Connor: Campaign Ruling a Concern in Judge Races, ASSOCIATED PRESS, Mar. 4, 2010, available at http://www.democrats.com/oconnor-campaign-ruling-concem-judge-races; Ann Woolner, AskNo Promises ofThese Political Candidates, BLOOMBERGNews, Sept. 1 , 2006, available at http://www.bloombergnews.com/apps/news?pid=2060 1 039&sid=avGtpem_bVR 4&refer=home. 3 . Republican Senator Tom Cobum ofOklahoma said his office would submit about twenty questions for the record. Senator Cobum also asked Judge Hamilton about judges' use of intemational law and Judge Hamilton's statement that judges' jobs are to write footnotes to the Constitution. Judge Hamilton was also asked what he would miss about being a district judge and pro bono work. Hearing ofthe Judiciary Comm. on the Nominations ofAndre M. Davis, to Be U.S. Cir. Judge for the Fourth Cir.; Thomas E. Perez, to Be Ass't Att'y Gen., Civ. Rights Div., Dep't of Justice; David F. Hamilton, to Be U.S. Cir. Judge for the Seventh Cir. Before the S. Comm. on the Judiciary, 1 1 1 th Cong. (Apr. 2 1 , 2009), available at Capitol Hill Hearing, FED. News Serv. , May 1,2009. 4. See id. "It seems pretty clear to me that joining the board ofan organization like FREE is actually a much more significant indication ofyour involvement with the organization and poses, in my mind, very different ethical questions." Obama Pick for Appeals Court Faces Tough Questioning, ASSOCIATED PRESS, Apr. 29, 2009, available at http://www.foxnews.com/politics/ 2010] INTRODUCTION 535 Senator Feingold's unstated message was: Are you somebody who will decide cases the way I would decide them, or not? This approach bore a strong similarity to Senator Edward Kennedy's 2006 pronouncement on judicial confirmation during the Bush Administration,^ and to Senator Chuck Schumer's flat declaration at the end ofthe Supreme Court's 2007 term that failing to mount a successful filibuster ofJustice Samuel Alito's nomination to the Supreme Court stood as one of his "greatest failings."^ He charged that Justice Alito and Chief Justice John G. Roberts, Jr. had reneged on their promises to respect precedent (by which he appeared to mean by not voting with the liberals), and urged that the Senate should presume any future nominees to be unsuitable. "^ That judicial nominees should make promises to the Senate about the Constitution is a striking idea for a good many reasons, because of course the authors ofthe Bill ofRights designed it to protect the American publicfrom the Senate. The notion that a judicial nominee can obtain confirmation only when the Senate finds what the nominee has to say about the Bill of Rights congruent with its own is deeply problematic. Why there should be any dispute at all over the principle of impartiality is hard to fathom. Throughout history, the role of judges has been to serve as neutral arbiters ofdisputes.^ Inherent in this role is the ideal thatjudges will shed any preconceptions or opinions ofhow a matter should be decided before hearing the parties' presentations of fact and law. It is vital to public confidence in the judicial branch that the law play no favorites. I have thought oftwo reasons why this ideal is now in dispute. One is that, at a fairly high level of statistical reliability, on high profile questions like the death penalty and abortion, judges in fact often do what they were hired to do.^ 2009/04/29/obama-pick-appeals-court-faces-tough-questioning. Usually called just FREE, the Foundation for Research on Economics and the Environment enterprise offers seminars on free- market environmentalism to federal judges and others. See FREE, http://www.free-eco.org (last visited May 6, 2010). 5 . "The result has been the confirmation oftwo justices, John G. Roberts Jr. and Samuel A. Alito Jr., whose voting record on the court reflects not the neutral, modestjudicial philosophy they promised the Judiciary Committee, but an activist's embrace ofthe administration's political and ideological agenda." Edward M. Kennedy, Roberts and Alito Misled Us, Wash. Post, July 30, 2006, at BOi, available at http://www.washingtonpost.com/wp-dyn/content/article/2006/07/28/ AR2006072801489.html. 6. Posting of Paul Kane to Capitol Briefing, http://voices.washingtonpost.com/capitol- briefing/2007/07/schumer_regrets_no_alito_filib.html (July 27, 2007 17:57 EST). 7. Id 8. For a historical discussion ofthe historical evolution ofjudicial impartiality, see Randall T. Shepard, Campaign Speech: Restraint andLiberty in Judicial Ethics, 9 GEO. J. Legal ETHICS 1059(1996). 9. Gerald F. Uelman, Crocodiles in the Bathtub: Maintaining the Independence ofState Supreme Courts in an Era ofJudicial Politicization, 72 NOTRE DAME L. REV. 1 133, 11 35-37, 1 149-51 (1997) (citing various cases, in the face ofpublic outcry, where judges have determined death penalty and abortion cases with unpopular results even when facing retention votes and 536 INDIANA LAW REVIEW [Vol. 43:533 Another reason is that part of the country's intellectual class has decided that impartiality is a sham that must be exposed as a cover under which liberaljudges ratchet the laws to the left and then demand that conservative judges leave it in place ''as precedent." A new ongoing example illustrating both these causes is gay marriage. ^^ Or to take a different field, if in fact the contours of corporate liability for drug warnings will not be made in Congress, the Pennsylvania legislature, nor the Food and Drug Administration, but instead at the supreme courts of Illinois or Wisconsin, then voters decide they should do what they can to affect the outcomes, just as they would have if the real forum was the legislative or executive branch. In the end, this produces a judiciary that behaves like the political branches of the government. It would be a great loss to the American experiment. 11. The Aging OF THE Baby Boom A second big, dumb trend is the baby boom tidal wave. When the Baby Boomers were five or ten years old, they filled the nation's grade schools to overflowing and prompted massive construction programs and an expansion of the teaching profession. When these same citizens are all sixty or seventy, both nursing homes and courtrooms will likewise be reeling under the pressure of certain expanding dockets. There are ways in which the courts interact with citizens who are towards the end of life, including people in nursing homes for whom there is no known relative. The host of things that happen at the end of life includes estate administration and guardianship. As a committee of the Indiana Judicial Conference recently observed: The substantial expansion in the number of seniors and the concomitant increase in the number ofdeaths, increased time will be spent by Indiana Courts on matters arising from the transfer of property due to death. With increase in non-probate forms of wealth transference, the issues formerly addressed in probate proceedings will be raised in litigation related to trusts and property disputes. Increased litigation can be expected as the number of deaths increase due to the disappointed expectations of heirs and expectant beneficiaries and frustrated creditors.'' pointing out that public education about what courts do, and a strong unified defense of the court by the local members of the bar help judges' maintain judicial independence). 1 0. The connection between gay rights litigation and the strategies ofcampaign consultants has been an especially interesting part of this development. See Randall T. Shepard, Second Windfor the State Bill ofRights, in THE BILL OF RIGHTS IN MODERN AMERICA 24 1 , 251-52 (David J. Bodenhamer & James W. Ely, Jr. eds., 2d ed. 2008). 1 1 . INDL\NA JUDICL\L CENTER PROBATE COMMITTEE, THE GRAY & THE BLACK: AN Examination of the Impact of an Aging Population on the Judiciary and How the Needs OF an Aging Population May Be Met by the Judiciary (2008) (on file with the author). 2010] INTRODUCTION 537 The American court system is not well prepared for this onmshing mass of human drama that is about to wash over it. This will largely happen in state court and not in federal court. We need a great deal more investigation in this field of our work and healthy commitments of imagination. In the places where that is undertaken, most notably and recently in Arizona, the resulting revelations are unhappy ones, but they can lead to important reforms. ^^ I am glad to say that the Indiana Judicial Conference is at work devising initiatives in this field. III. Yet Another Budget Crisis A third big dumb trend is what I will call here the decennial budget crisis. The current "Great Recession" represents my third budget crisis as a supreme court justice, deeper than the other two to be sure. The remarkable feature ofthe collective reactions to the current crisis has been how predictable they have been. One could haul out the speeches and the articles thatjudges, court administrators, and the rest ofthe legal profession prepared during the Carter recession (or those from the early 1990s), change the names and the numbers, and readily recognize that the vocabulary of 2010 is largely the same. We have spoken about the impact of recession on America's courts by emphasizing judicial independence, by worrying about the role of governors in shaping court requests to the legislative branch, by heralding "the Constitution." The solutions we propose at these moments of fiscal distress have likewise not improved much. They tend not to feature general inventiveness. What gets cut first? How many lay-offs will there be? We repeat to ourselves and others that we must protect those processes that represent our constitutional obligations. What that often means is we cancel civil jury trials and conduct criminal trials regardless of the severity of the offenses. This means spending time trying misdemeanors, while the citizens who have been injured in products liability cases stand in line hoping for compensation. We take for granted that the Constitution requires us to give priority to the criminal cases, and thus we push the rest of the litigation to one side. A change in vocabulary during these regular crises might make a difference, but it will take a huge leap for the American court system to rethink what we do and how we talk about what we are doing ifthe cause ofjustice is to be sustained in the third decennial budget crisis. In a few places, bench and bar leaders have developed new dialogues. In Minnesota, the chiefjustice organized the Coalition to Preserve the Justice System, a group that included representatives like police 12. Arizona's first examination ofcourt supervision ofprobate activity, propelled by "highly publicized cases of mismanagement and financial exploitation of incapacitated and protect persons," led to a statewide program under which fiduciaries must be certified. Fiduciary Advisory Committee to the Arizona Judicial Council, FinalReport 1 (200 1 ); ChiefJustice Rebecca White Berch of Arizona has ordered a review of probate "everything from how the vulnerable are being protected to how much they're being charged for that protection," Laurie Roberts, Review ofProbate Court Ordered, ARIZ. REPUBLIC, Mar. 26, 2010, at Bl, available at http://www.azcentral.com/arizonarepublic/local/articles/20 1 0/03/25/20 1 00325roberts0326.html. 538 INDIANA LAW REVIEW [Vol. 43:533 and prosecutors. It spelled out what would cease to occur if severe cuts were pushed through (like not trying traffic cases or shoplifting). '^ The Iowa Supreme Court issued a list offtirlough days when the courts would close altogether, ^"^ and the chief justice outlined in a speech to the legislature which court services would no longer be provided (assistance to people without lawyers) and what the effects of shrinking trial time would be (even more plea bargains).'^ TV. Communicating with the Public That leads to the fourth obvious trend: the sea change in information. It but recites the obvious to say that the American court system is way behind other institutions in society on this score. The Audit Bureau ofCirculations reported this spring yet another substantial drop in newspaper circulation in the country.*^ In what seemed like a symbolic event, the owners ofEditor & Publisher shut it down as a printed magazine at the end oflast year.'^ The Boston Globe suffered among the most serious losses, and Sumner Redstone, ^^ interviewed on this point, said he thought there would be no 13. Jay Weiner, Justice Community: Cutting Budgets for Courts, County Attorneys, and Defenders Is Dangerous, MiNN. POST, Jan 14, 2009, available at http://www.minnpost.com/ politicalagenda/2009/01/14/5856/justice_community_cutting_budgets_for_courts_county_attor neysanddefendersisdangerous. 14. Press Release, Iowa Judicial Branch, State Budget Problems Prompt Unpaid Leave for Judges and Court State, and Temporary Court Closures (Nov, 10, 2009) (on file with author), "lowans will have to settle for 'assembly line justice' because of state budget cuts that forced layoffs while the number of recession-related court cases grows." Grant Schulte, Iowa's Chief Justice Decries 'Assembly Line Justice' in Wake of Cuts, Des Moines Reg., Jan. 15, 2010, av(af//(3Z)/e(2/http://m.desmoinesregister.com/news.jsp?key=585374&rc=ln. See William M. Welch, Court Budget Cuts Slow Swift Hand of Justice, USA TODAY, Apr. 1, 2010, available at http://www.usatoday.com /news/nation/20 10-03-3 l-court-cuts_N.htm. 15. Marsha Temus, Chief Justice of the Iowa Supreme Court, 2010 State of the Judiciary, (Jan. 13, 2010), available at http://www.iowacourts.gov/ wfdata/frame9830-l 152/file59.pdf 16. In the six months ending with March 2010, average dailypaid circulation was down 8,7% from the previous year. Mark Fitzgerald, Like Newspaper Revenue, the Decline in Circ Shows Signs ofSlowing, EDITOR& PUBLISHER, Apr. 26, 20 1 0, available at http://www.editorandpublisher. com/eandp/news/article_display.jsp?vnu_content_id=l 004086334. That this might be favorable news was due only to the fact that the decline in the previous six months was a little worse. The Audit Bureau ofCirculation reported that in six months ending September 20, 2009, sales fell by 10.6 percent on weekdays and 7.5 percent on Sundays from the period a year earlier. The industry was selling "about 44 million copies a day — fewer than at any time since the 1940's." Richard Perez-Pena, U.S. Newspaper Circulation Falls 10%, N.Y. TIMES, Oct. 27, 2009, at B3,