Nothing is more important to our nation than an independent judiciary, for judicial independence goes to the very core of our democracy. In fact, if you want to measure the level of freedom in any country, the first thing to be determined is whether that nation's judges are truly independent, not just from other branches of government, but from all influences of power, because ultimately a free society depends upon a judiciary that is loyal only to the law.
An independent judiciary is not a given. It is like a delicate flower that requires constant nurturing. Recently, however, our state courts received a shock that may threaten their bloom. The United States Supreme Court ruling in Republican Party v. White, (1) which declared the "announce clause" unconstitutional, is the culprit. This decision is likely to create a judiciary that over time will become less independent and more beholden to individuals. At a minimum, the Supreme Court's opinion will open the door to the same cynical election process for state judges that has infected the electoral processes for our two other branches of government.
Why does this cynicism exist? Why is it at an all-time high? In part the answer is because Americans are convinced that special interest groups have far too much power over the legislative and executive branches. Voter apathy and the demand for campaign finance reform are two manifestations of this new reality. To date, the judiciary has escaped the perception that judges are influenced in their decisionmaking by special interests. But how much campaign money will need to be spent, how many issue-advocacy ads will need to be aired, how much negative advertising by judicial candidates will need to be created before the public changes its mind? As Benjamin Cardozo himself once pointed out, "[t]he great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by." (2) And once the public changes its perception of how justice is determined, will the judiciary ever get its credibility back? Our profession's own recent history suggests that it will not.
On June 27, 1977, the United States Supreme Court decided Bates v. State Bar of Arizona. (3) Balancing society's interests in the free flow of commercial speech against the need to regulate the legal profession, the majority of a deeply divided Court rejected the Arizona Bar's argument that advertising would ultimately erode true professionalism and diminish the legal profession's reputation in the community. The last twenty-five years have proved that majority wrong. And Chief Justice Burger's premonition that the Court's decision would ultimately redound both against the profession and the general public unfortunately has turned out to be accurate--too accurate.
Quite simply, the majority in Bates failed to acknowledge human nature. Lawyers quickly determined that the Supreme Court had created a crack in the heretofore solid armor of professionalism. They learned that they could advertise just like any other trade, and in the process they found out what Madison Avenue already knew: Some approaches sell while others do not. Thus legal advertising became slicker in its packaging as lawyers exuberantly pushed the envelope beyond what many Americans considered good taste.
The American Bar Association and many state and local bar associations did what they could to prevent misleading advertisements and to temper the more distasteful ads, but the die was cast. Advertising helps the bottom line and the bottom line became what it was all about. After all, in Bates, the Supreme Court had labeled our profession a trade. And a trade is really a business. "If you're injured, it must be somebody else's fault," became more than just a slogan, it became our profession's scarlet letter. Is there any wonder why the legal profession is one of the least respected by the public? …