Florida Bar News – Texas Chief Justice Hecht Says the Branch Must Stem the Public’s Growing Lack of Confidence in the Courts

Chief Justice Nathan L. Hecht of the Supreme Court of Texas

Surveys show public confidence in the courts has been in decline since 2012 and it is incumbent on lawyers and judges to work together for improvements in the administration of justice to reverse that disturbing trend, according to Chief Justice Nathan L. Hecht of the Supreme Court of Texas.

Hecht, the featured speaker at the Supreme Court Historical Society’s April 7 annual “Supreme Evening,” said the lack of confidence in the courts is especially sobering considering the justice system is the most significant government convener in the country.

“We have 1,100 courthouses in Texas,” Hecht told a ballroom of judges and lawyers in Tallahassee. “In 2019, before the pandemic, 325,000 people went to our courthouses per day. Almost two-thirds of the country has some connection [or] interaction with the courthouse or the justice system every year.”

Hecht said a recent National Center for State Courts survey found state courts have an approval rating of just 64%, down from a 76% approval rating in 2018.

“Here is the scary thing,” Chief Justice Hecht said when asked if the justice system provides justice to all, 47% said “no” and another 7% didn’t have an opinion.

That, Hecht said, is “sobering” and noted the “general public thinks there is only a 50-50 chance that the justice system is going to operate fairly.”

But why?

The main challenges to the independence of the Third Branch emanate from four main sources: politics, the media, foreign disinformation, and the pandemic, he said.

Hecht said you need to look no further than the “politically driven” Senate confirmation process of U.S. Supreme Court justices where no nominees emerge unscathed.

“It is a very daunting process, and the aim of the political branches is to criticize the judicial nominee,” he said.

Whether it is Ketanji Brown Jackson, Amy Coney Barrett, or Brett Kavanaugh, when people are asked what the main reason is to oppose a nominee, the answer is the same — the candidates’ “inability to explain judicial philosophy.”

For Jackson, Chief Justice Hecht said, it was her refusal to express her view on court packing. For Barrett, her reluctance to delve into climate change. Kavanaugh? His refusal to discuss Roe v. Wade.

“Inability to explain judicial philosophy is code for would not say how they will vote on cases,” Hecht said. “In other words, the nominee has a hidden agenda. In other words, she is not independent. But here is the irony, she shouldn’t be.”

The takeaway by the public, Hecht said, “is that judges play favorites, and they should, but they should be on our side.”

And while the media has a responsibility to report on the process, their amplifying of that message is unhelpful, he said.

Chief Justice Hecht said the image of U.S. courts, as well as those in the United Kingdom and Europe, are distorted by “a very strong disinformation campaign” by foreign adversaries to undercut democracy.

“And the message is very simple,” Hecht said. “The courts are for the rich and powerful. It’s a message of alienation they want to convey.”

The pandemic, too, has taken a toll on the perception of the courts by delaying justice with the buildup of massive backlogs.

“Since we can’t talk about case outcomes, what can we do. . . to show the public that they should take pride in the justice system?” he asked.

One way, Hecht said, is continuing to embrace remote proceedings. Hecht said another National Center for State Courts survey found two-thirds of respondents who said they had been involved in or know someone involved in a remote proceeding rated the outcome as good and hoped the justice system would keep using it.

“We have learned two things, that remote proceedings are fabulous, and they really work and increase participation in family cases, they help with maturation of misdemeanor cases, and they really do a lot of good in a lot of ways,” Hecht said. “And the other thing we have learned is they are terrible in other circumstances.”

Finding where to draw that line is key, he said.

Another solution the National Center is proposing is what they call “technical bailiffs.” This would be a person assigned to the court who makes remote proceedings efficient. They take care of all the technical details and communicate with the lawyer and parties to assist them in navigating the logistics of remote hearings.

Hecht said the courts also need to confront the reality that for the first time in a long time many court cases don’t need the formality of a lot of the various state rules of procedure; “they just need to be managed to fair and acceptable outcomes.”

“There is just no way that in a country like the United States . . . [we] can sit by and let so many people in need of access to the justice system not get it,” he said.

Court systems across the country also need to standardize their statewide case management systems to be in a better position to plan for the future.

“If we do all that and show the public, it will go a long way to show we are fair,” Hecht said.

Hecht said he’s confident the courts will emerge from these challenges stronger and better.

“We should heed this summons to bring the justice system into the 21st century adhering firmly to our ancient values and answering to the demands of our changing culture for more accessibility while deepening our own dedication to justice for all,” said Hecht, adding to rebuild public trust and confidence in the branch will take a concerted effort and ways must be found to treat those who interact with the courts better so when people come out of that courthouse, “they say thank goodness for the justice system.”

Mark D. Killian, Florida Bar News (2022, April 12) https://www.floridabar.org/the-florida-bar-news/texas-chief-justice-hecht-says-the-branch-must-stem-the-publics-growing-lack-of-confidence-in-the-courts/