Independent Courts as Economic Infrastructure
The following article appeared in the February 2012 issue of the Georgia Bar Journal.
A third of a century trekking between Georgia courts, first in a single rural circuit and then more or less statewide, has made me a minor connoisseur of courthouses, the most visible physical infrastructure of the judicial system. I have tried cases in a courthouse across the street from a railroad track where cross-examination was frequently interrupted by passing freight trains. In courthouses where birds flew through open windows and found perches near the high courtroom ceiling and in courthouses that would have been a great movie set for “To Kill a Mockingbird.” I have tried cases in courthouses that resembled a poorly designed 1950s motel, in a “law mall” resembling an enclosed shopping center and in an architectural gem that could be a post-modern capitol of a small state.
The centrality of courts in American life is obvious when you drive down a two-lane blacktop into the typical county seat town. On a square near the intersection of main roads stands a Neoclassical/Greek Revival/Colonial/Victorian/Romanesque/Beaux-Arts/Classical structure built in the 19th or early 20th century. A few burned and were replaced by structures for which surely no architect would claim credit, but many old courthouses have been beautifully renovated. In a number of growing counties the historic courthouse on the square has become a museum, replaced by a larger and more efficient “justice center” several blocks away. However, the centrality of the courthouse is still marked by the historic placeholder.
Before the American Revolution, when power resided with distant officials in London, the functions of local bailiffs (who sometimes acted as judges then rather than security guards), magistrates and justices of the peace – often illiterate and lacking even rudimentary legal training – were carried out in the informal settings of homes, taverns, churches or meeting halls. In the older colonies to the north small brick county courthouses began to appear in the early 18th century. In the younger colony of Georgia, where both lawyers and rum were initially prohibited, a year after the 1733 founding of Savannah a one room “Tabernacle and Court House” was included in the town plan. By the time of the Revolution a brick courthouse was built at Wright Square, while our other 11 colonial parishes apparently had no more than a crude log court building. In 1777, the first Georgia constitution created eight counties and provided for erection of a “court-house and jail” in each of them, symbolic of the transfer of political sovereignty from a distant king to the local people.
Over the next several generations of rapid growth, settlers and surveyors spread westward, filling the land they took from the native inhabitants and dividing it into a multitude of counties. In Georgia, the idea was that every farmer with a horse and wagon should be able to get to the county seat and back in a day. New counties proliferated until we hit a maximum of 161 before the merger of Fulton, Campbell and Milton in 1931, after which the constitution was amended to limit us to a mere 159 counties.
Wherever a new county was formed, construction of a courthouse was one of the first public acts, along with the basic “hard infrastructure” improvements of mule-scraped dirt roads, wooden bridges, and eventually railroads, telephones, rural electrification and paved roads. Scattered across rural Georgia today are a few century-old courthouses that stand almost alone among the fields and pastures, monuments to the aspirations of the founders of a newly formed county that was bypassed by railroads and major highways.
In the years after Alexis de Tocqueville described lawyers as America’s “natural aristocracy” that served as a conservative restraint on the excesses of temporary majorities, the increased professionalization of law and architecture led to construction across the country of hundreds of courthouses, proud structural symbols of democracy, law, aspiration, free enterprise and prosperity. Courthouses were the core of infrastructure around which were built train depots, cotton gins, factories, warehouses, schools, churches, libraries and eventually hospitals. Upon such foundations many Georgia communities were built.
Political discussions of public infrastructure usually focus on “hard infrastructure” required to support commerce and quality of modern lifehighways, bridges, seaports, airports, rails, dams, reservoirs, water and sewer systems, the electric power grid, natural gas and petroleum pipelines, telecommunications, waste management systems and so forth.
However, “soft infrastructure” is just as important. The services of education, health care and financial systems are key components of the “soft infrastructure.” For example, without a world-class system of education for all our youth, our nation cannot preserve its pre-eminent role in the global economy of the 21st century. It is imperative that our state and local communities place priority on making our public schools competitive with the best in Shanghai, Singapore and Helsinki, equipping our children and grandchildren with competencies in math, science and creativity to be able to excel in the “flat world” of a global economy knit together through technology. Losing our edge in education, we are vulnerable to economic decline and all that implies. A young lawyer seeking a path for public service could do worse than to serve as a volunteer tutor, become active in PTA leadership or run for the local school board with a clear focus on making their local schools competitive with the best in the world.
A strong, independent judicial branch of government is also an essential component of “soft infrastructure.” Judicial independence is periodically attacked from both right and left, depending upon whose ox was most recently gored. Any of us may passionately disagree with and bitterly criticize particular court decisions. However, attacks on judicial independence often come from folks who place their own agendas ahead of the common good or who slept through civics class.
Economic theory generally supports the idea that high-quality courts and judicial independence facilitate economic growth. Our courts uphold both public order and the rights of citizens, enforce contracts and protect property, provide an orderly manner to obtain compensation for wrongs done, promote stability, and by doing so encourage the investment necessary for economic development.
Investments in high-quality, independent courts can promote a “virtuous cycle” where relatively modest expenditures on court improvements enhance economic growth. Judicial independence is economically important because it serves as a mechanism for the government to turn its simple promise of equal justice for all into a credible commitment. It increases predictability for businesses and individuals so they may have a broader planning horizon necessary for higher levels of investment in machinery and human capital. This empowers higher degrees of specialization, which in turn promote economic growth. Independent judiciaries, therefore, are conducive to high-income levels and growth and facilitate higher tax revenues for the state.
Some economists have suggested that countries with legal systems based on the common law have more highly developed financial markets than civil law countries because the common law provides more secure protection of property and contract rights, creditors and minority shareholders, all of which are keys to the cost of capital. The root of such a distinction may not be in substantive differences in legal rules, but because of differing assumptions about the roles of the individual and the state. The common law has been associated with fewer government restrictions on economic and other liberties. The bottom-up nature of the common law tradition, built upon human experiences in thousands of cases, as distinguished from a top-down approach in a predominantly autocratic or regulatory state, may be seen as a proxy for the intent to limit rather than strengthen the state, and to preserve rather than erode the rights of individuals. Some also suggest that the common law’s adversarial adjudication process tends to result in the survival of efficient and the demise of inefficient rules.
In countries such as ours with systems based upon the common law tradition, judges are independent officials occupying a high-status office, whereas in systems outside the common law tradition judges are often civil servants of relatively low-status without independent authority. An independent judiciary serves to fragment governmental power and thus restrain the power of the state to run roughshod over the personal, property and economic rights of individuals. That is a key distinction between the constitutional systems of the United States and other countries, such as the old Soviet Union, where constitutions may look great on paper but are not enforced to restrain the power of authoritarian political systems. It is only an independent judiciary that can assure that the powerful cannot crush the weak with impunity and that political winners do not annihilate anyone who unsuccessfully opposes them.
Judicial independence faces many challenges, but perhaps the greatest threat is the erosion of judicial pay to the extent that Chief Justice John Roberts has said approaches a “constitutional crisis.” If the courts are to maintain their position of respect, strength and independence, judgeships should be attractive to successful lawyers in the prime of life. No good lawyer should be forced to choose between accepting a judgeship and sending his or her children to college.
Chief Justice Roberts has pointed out that from 1969 to 2006, inflation-adjusted federal judicial pay declined 23.9 percent while the average U.S. worker’s wage, adjusted for inflation, rose 17.8 percent, for a net gap of 41.7 percent. This left judicial compensation below that of typical mid-level (and a few first-year) associates in many large law firms. Moreover, in 1969, a federal district judge earned 21 percent more than deans at top law schools and 43 percent more than senior professors at those schools, but by 2006 earned about half as much as top professors at such law schools. The judiciary, according to Chief Justice Roberts, will soon be restricted to “(1) persons so wealthy that they can afford to be indifferent to the level of judicial compensation, or (2) people for whom the judicial salary represents a pay increase.” The comparative numbers in this analysis have surely changed during the severe recession of the past few years but the core fact of erosion of judicial pay remains true. Much the same diminution of purchasing power of judicial power has occurred in Georgia’s judicial system, though the wide variations among local supplements for superior court judges and the mix of full-time and part-time state court judges make a precise comparison quite complex.
While surprisingly few judges leave office before retirement explicitly because of the pay gap between judicial salaries and what they would expect to earn in private practice, the lagging compensation does affect both judicial morale and the talent pool from which judges are drawn. In the 1950s, two-thirds of federal judicial appointees came from the private sector. Today that is nearly reversed, with more than 60 percent coming from the public sector.
Certainly there are many superb judges whose prior careers had been primarily in the public sector. In vetoing a judicial pay raise, a former governor said he was impressed by the “quality and character of those who offer themselves for public service in the state judiciary.” However, that did not take into account the trend, especially in metropolitan areas, to draw judges primarily from public sector jobs because judicial office requires too great a financial sacrifice for lawyers in their prime who have been successful in private practice. I have heard judges comment that public service is much more palatable when one has a very highly compensated spouse or a strong base of family wealth. One wag even suggested that the solution for lagging judicial salaries is to require that judicial aspirants “marry rich.” In any event, life experience in the trenches of private law practice – taking entrepreneurial risks, representing paying clients and making payroll – is a different and valuable form of preparation for judging than a career spent primarily in the public sector.
A more subtle impact may be that, at least in the federal system in major metropolitan areas, lawyers who are willing to accept huge pay cuts from lucrative partnerships at major law firms in order to become judges may be ideologically motivated. There must be a strong motivation for an equity partner at a top law firm to take a staggering pay cut in order to become a judge. Some contend that, at least for those for whom judicial office would involve the greatest lost opportunity cost due to disparity with fairly secure private practice income in a large firm, such motivation may be, at least in part, driven by the opportunity to indoctrinate. Judges ought not be “minor league politicians” seeking to make law rather than apply the law. While this does not appear to be a major problem in Georgia today, it is a potential concern to be addressed.
Beyond the core issue of funding, there are many other issues that a 21st century judicial system must address regarding organization, structure, case flow management and court technology. Last spring I had a conversation with Hon. David Emerson in Douglas County, currently president-elect of the Council of Superior Court Judges, about electronic court filing. He commented that we ought to step back and ask what we want the court system to look like in 20 years. Following up on that suggestion when I became president of the State Bar, I appointed a Next Generation Courts Commission, chaired by Hon. Lawton Stephens of Athens. It includes judges, clerks and administrators representative of every class of courts in the state, legislators and practicing lawyers. The commission is divided into five hard working subcommittees, each of which has a meaty agenda of issues to address: business process improvement, technology, education & outreach, program improvements & expansion and funding. I expect that they will help determine the path to improve the judicial infrastructure for Georgia’s future.
A judicial branch of government that is independent, adequately funded and compensated and equipped for efficiency is essential infrastructure for both the liberty of our citizens and the growth of our economy. Money allocated to support a strong and independent judicial branch is money well invested. As Alexander Hamilton put it, “[t]he independence of the judges once destroyed, the constitution is gone, it is a dead letter; it is a vapor which the breath of faction in a moment may dissipate.”
Kenneth L. Shigley is the president of the State Bar of Georgia and can be reached at firstname.lastname@example.org.