Dry Bones on the Bench—The Remedy for the Evil
 No argument is needed either for the layman or the lawyer to prove that the administration of justice is the most important function of government. It is, of course, the sine quod non of organized society. And yet, it is probable that the judiciary is the least efficient of all classes of functionaries.
That this assertion is not consonant with conventional attitude will be admitted. But upon investigation I am confident it will be found that our habitual reverence for the judiciary is the adumbration of hope rather than of faith. It is a form of whistling to keep the courage up. Confidence in the triumph of justice is a necessity of the human mind. We must believe in the superior integrity and intelligence of the supreme power or become anarchists. The moment we lose faith in the courts we lose faith in organized society. And so we "hope when hope is gone."
Due to our fear of finding what we dread, we have persistently refused to subject judicial officials to the same scrutiny we would apply to others. In presence of the most perverse judicial action we are expected to kneel, cross ourselves, and pray that we may be granted intelligence to see the wisdom of it.
My aim is to show that this attitude, so far from prompting higher efforts on the part of the judiciary, is the main cause of the inefficiency of that branch of the public service.
There are three principal classes of inefficient judges, viz: those who lack the ability of judicial discrimination, those who have lost their power through senility, and those who have lost interest in their work.
The last class is by far the most dangerous as well as the most numerous.
And again I take issue with conventional opinion as to the comparative merit of life tenancy and tenancy for years on the bench,—or, which is generally the same, appointive and elective judges.
The average ability of the federal judges I concede to be superior to the average ability of the state judges. This is due mainly to the fact that under the elective system we see at times men elevated to the bench who are so far below mediocrity both in intelligence and integrity as to lower the general average for the state, while these freaks are kept off the bench. But this does not mean that also the general efficiency of the federal judiciary is superior to that of the judiciary of the states. I have no hesitancy in declaring the contrary to be the case.
In the first place, the federal bench has a large number of superannuates; in the second place, it has its share of general incompetents, and thirdly, it has a superabundance of men who have lost all interest in their science, and hold on only to receive homage and draw salary. These people perform their duties as a rule, perfunctorily. Only occasionally do they take an interest in a case. They are answerable to nobody. Nobody may inquire. The injured party is not in position to complain. No one would believe him if he did. His lawyer must smile and say he was evidently mistaken, for he has another case before the same court next week; or, at most, he can be placed in category with Byron’s Jack Bunting, of whom we read:
"He knew not what to say, and so he swore."
As a general principle it will probably be conceded that a public official who is answerable only to his own conscience is an anomaly in modern society. He is a survival of a medieval institution. Now, it is a matter of history, readily demonstrable, that officials answerable only to their own conscience develop, as a rule, the most brutal propensities. Has the effect on the judiciary been otherwise?
 When I undertake to promulgate the unconventional doctrine that the judiciary is the least efficient branch of the public service, I do so with the full realization of the fact that the burden of proof rests upon myself. Samples of the evidence which may be produced will be submitted in the form of illustrations which are also demonstrations of the correctness of my proposition, at least in part.
Here is a typical case which is not a fiction, but a fact:
Plaintiff sued on an account for some few thousand dollars. Defendant denied the indebtedness and set up four counterclaims. On trial the court dismissed the first counterclaim, but the jury rendered a special verdict in favor of the defendant for all that was asked in each of the other three counterclaims. The general verdict, however, was in favor of plaintiff,—the amount found due defendant on the last three counterclaims being deducted from the amount found due plaintiff on his cause of action. Defendant appealed, alleging various errors of the trial court which had resulted in the dismissal of the first counterclaim.
In preparing the bill of exceptions all evidence bearing upon and all reference to the three last counterclaims were carefully eliminated. Those questions had all been decided in favor of defendant, and, of course, no error touching them was, or could have been, assigned.
What happened in the court of appeals? That tribunal filed an opinion stating with grave judicial dignity, after reciting seriatim from the answer the general allegations setting up the three last counterclaims, that it (the court) had carefully examined the evidence bearing upon counterclaims two, three, and four, and find that it was sufficient to justify the court in submitting them to the jury.
Reflect on this action of this dignified body, too sacred to be criticized.
After this clear misstatement of a fact, that it had investigated records not in existence, and decided questions not before it or in any way arising in the case, the court closes its "opinion" with the impressive assurance that "we have carefully examined the other questions raised and conclude that no reversible error has been committed."
What assurance have we that the last statement was not as false as the first? As a matter of fact, not one of the questions actually submitted had even been alluded to by the court.
In another recent case decided by a federal court of appeals the construction of a written contract was involved. The lower court had held that a certain clause in the document was inoperative. The aggrieved party appealed and argued that the clause was valid and binding on both parties. The court of appeals, after citing the clause, said: "The lower court held, and we think rightly, that this proviso was binding on both parties. The judgment is consequently affirmed."
It is obvious that in neither of those cases had the judges, or either of them, read appellant’s brief, much less the records. If those gentlemen have any regrets it is that the court was "caught with the goods" and that they cannot hide their perfidy behind the convenient screen that the law is only a matter of opinion anyway. Aside from that feature these cases are not exceptional. They are quite typical of the indifference with which possibly the majority of the cases decided by the same tribunal are examined.
This statement will be challenged as extravagant, but by whom? By Mr. Soandso, the famous lawyer, and by Judge Somebody, the celebrated jurist. These men, of course, have no cause for complaint. Their fame insures them a hearing. But I am speaking for the other Ninety-nine out of every one hundred of the active practitioners.
Some time ago a young lawyer within my acquaintance had two cases before the  same appellate tribunal during the same session and involving one and the same identical question of law. This lawyer had won the first case and had lost the other. Both were appealed. The cases were decided thirty days apart and both were affirmed. The one question raised had been decided diametrically opposite in the two cases. In one case the court held one contention was law, and in the other that the very opposite was law. Both decisions showed the court had not studied either case.
What was to be done? The young lawyer, knowing that as a general rule motions for rehearing are not read, addressed a personal letter to one of the judges who had sat on the case, and with whom he was socially on friendly terms, calling his personal attention to the discrepancy. The letter emphasized the fact that he was a good loser and could stand a defeat, but he objected to being "whipsawed." This proved effective. Rehearing was granted, and the case reversed. But why reversed? Simply because at that time the period for ordering a rehearing in the other case had expired, and to harmonize the two the last case had to be reversed, right or wrong. The young lawyer ultimately won both cases, when, as a matter of fact, had the position of those cases been interchanged on the calendar he would have lost both.
At this point some sage will suggest that it was quite immaterial which way the question was decided, so long as it was definitely settled. But what of the litigants? What of the "sacred right of property?" What of this frivolous juggling with other people’s belonging? What if both had been criminal cases? Would it have been immaterial whether the court had decided that both should hang or neither should hang?
I have a friend who has a decided genius for law. He was for some years brief writer for one of the famous lawyers of the country, but for many years past has practiced for himself. He informs me that whenever he appeals a case he borrows the name of his former employer as an ornament for the front cover of his brief. That insures consideration. It is sad experience has taught him that lesson, for, in spite of his ability, fame has not come to him personally.
It is, of course, difficult, in fact, impossible, to determine how large a percentage of the cases before the federal courts of appeals receive fair consideration. From whatever investigation I have been able to make I would think that not over ten per centum of the questions argued are touched at all in the opinion. Of course, not all of them need be decided in order to reverse, but all, as a rule, should be passed upon in order to justly affirm the judgment.
It is no secret that the average appellate judge, after he has been on the bench a few years where the excitement of the trial is absent as stimulus to his mentality, loses interest in jurisprudence as a science, and he gets to hate the sight of a brief. Each session he may for one reason or another, become interested enough in a few cases to study them. The rest he passes on pro forma. If it becomes his duty to write an "opinion" in the latter class of cases, he will most probably take the opinion, or some opinion of the lower court, and follow that, even to the extent of quoting the misquotations, thus leaving the marks by which the process of "careful examination" may be discovered and exposed.
Work on the bench soon becomes drudgery to the average mind and my observations lead me to the belief that, as a general rule, a district judge temporarily assigned to appellate bench does more efficient work than the average circuit judge. The reason is obviously not a difference in ability, but a difference in the enthusiasm with which each goes at the task.
The effect of this lamentable indifference of the court is only too apparent. Not only does the lawyer soon lose interest in juris-  prudence as a science, but his client becomes an anarchist.
Take a case like either of the first two above cited. The aggrieved party read and reread the briefs as well as the transcripts. His mind is fed on nothing else during the three months waiting for the action of the court. He knows every point raised. He can repeat every argument advanced. All his savings through a lifetime are tied up in the case. He knows he is right. Then comes the decision. It deals with none of the points argued. It shows on its face the court refused to read the brief. He had been tossed aside like a white chip. He knows, and his friends know, he has been denied his day in court.
To that man, to his family and to his friends, organized society is organized iniquity.
And the present system is manufacturing citizens of such sentiments by the thousands every year.
Underneath the social unrest of the world to-day, as its main underlying cause, is the feeling in the breasts of the masses that justice is not for them. They do not know the cause, nor can they suggest the remedy,—and so they only want to destroy. Society to them has come to mean organized injustice.
The situation here presented is one which constitutes a clear and special call upon the bar for definite action. To remain silent is treason. It will not do to cover the situation under gown and wig and try to assure the world that all is well. It will not do any longer by any show of reverence for the office not earned by the occupant, to attempt to hypnotize either ourselves or the masses into the belief that the judges are superior beings.
And a remedy reasonably effective is reasonably simple. If a tribunal were established with power to investigate and remove, or recommend for removal, grossly inefficient judges, there is no doubt that during the first year such tribunal would be swamped by complaints founded upon decisions akin to those I have cited above. The mere existence of such a tribunal would put life in the dead bones of the present courts. A few removals would renovate the whole institution. A delay in the matter by those in authority is criminal.
Dry Bones on the Bench—The Remedy for the Evil.
By John Rustgard
Pages 341 - 344
Note: A few minor corrections were made to what appears to be typographical errors in the original.
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This page was updated on June 19, 2003