The STATE of the STATE COURTS
Abrahamson, Shirley S., Judicature
For state courts, it is the best of times and it is the worst of times.
Editor's note: This article is adapted from Wisconsin Chief Justice, Abrahamson's informal remarks at the Midyear Meeting dinner of the American Judicature Society on February 27, 2004.
I am going to talk about the state of the state courts, and I am going to organize my presentation into three clichés. The first cliché is that this is the best of times. The second is that it's the worst of times. The third is that there's a silver lining.
The best of times
It's the best of times because it's well recognized, at least within judicial and legal circles, that more than 95 percent of the legal business of this country is in the state courts. The people of this country are in the state courts from traffic tickets to murder, from small claims through major civil actions.
In prior years we talked a lot about parity of judges. That is, we wanted to bring state court judges up to the qualifications of the federal judges. It's now generally recognized that state court judges do have qualification parity with federal judges. Indeed, a significant percent of federal judges come from the state court bench.
Some of us have declined to go on the federal bench with a life-time tenure, without having to face election, even though the pay might be better, and even though retirement benefits may be better. And the reason we stay in the state court system, with all due respect, is that we have a much more interesting docket.
I prefer to be an appellate judge so I didn't move on to the federal district court. And when opportunities arose to go on the Seventh Circuit, I carefully looked at the dockets, and the docket for the Wisconsin Supreme Court is much more interesting than the docket for the Seventh Circuit. Our docket is, with many exceptions, a common-law docket, which gives us great opportunity to develop common law. We have a variety of cases and in addition we select the cases we hear. We are a court of final jurisdiction except to be reviewed by the U.S. Supreme Court, which is not likely when it is taking only 80 to 100 cases a year. So as to federal questions, for most of them that come to us, we are the final word.
Why else is it the best of worlds now? We have a number of institutions that are working with and for the state courts that are very influential at the local level and at the national level. For example, we have the National Center for State Courts, which was founded with the great help and assistance of former Chief justice Warren Burger. It does research work for and with state courts, funds various pilot projects, and draws the state courts together so they have cohesive programs and cohesive approaches to common problems.
We also have the Conference of Chief justices, which has become more and more active as the years have progressed. We have a Conference of State Court Administrators that assists in the management of the courts. The state courts have worked much more closely as a unit with the federal judiciary. The judicial Conference of the United States sends representatives to various state conferences. We work in conjunction with the Federal judicial Center on educational programs. This type of cooperation makes for a stronger state court system and a stronger federal system. Thus I conclude that this is the best of times for the state courts, and we're perched to do better work both within the 50 states and the territories and as a national unit.
The worst of times
But it is also the worst of times. Why? Well for one thing, all courts, federal and state, face a basic problem of an apparent lack of public trust and confidence in government; whether it be federal government or state government, whether it be the legislative or the executive, or the judicial branch.
It's hard for the public to distinguish between what the legislature does and what the executive does, or doesn't do, and what a court does or doesn't do. …