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May 24, 2005

Press Contacts:
Jodi Bart, UT Law Communications, (512) 471-7330.

Chief Justice Wallace Jefferson's Commencement Address from the 2005 Sunflower Ceremony

The University of Texas at Austin School of Law was proud to have Chief Justice Wallace B. Jefferson of the Texas Supreme Court, a 1988 graduate of the School, speak at graduation on Sat., May 21, at 3:30 p.m. at the Frank C. Erwin, Jr. Special Events Center at UT-Austin. A total of 525 students graduated this May.

Remarks by Chief Justice Jefferson:

Seventeen years ago, when I sat on the floor of this arena awaiting official recognition of my years of study at this great law school, I wondered what contribution I would make to the law, and to society. I encourage you, at this moment, to set high expectations. I, and so many others who have graduated from The University of Texas School of Law, are proof that the higher you set your goals, the greater the opportunity to improve access to justice for all.

You graduate from a class with more rigorous entrance requirements, and begin your legal career with a more comprehensive education, than any previous generation of lawyers in our history. A backward glance at the development of legal education shows just how far we have come.

Before the Civil War, the legal profession was a noble calling that only those disciplined enough to read the law on their own, or fortunate enough to find a lawyer willing to serve as an apprentice, could hope to achieve. Licensing, if any, was often left to the local trial judge. It was not a profession for women, yet today a graduate of this institution serves as our United States Senator. The profession was often used to serve not liberty, but slavery. And yet today I, a descendant of a slave who was owned by a Texas judge, have the honor of representing the judiciary as Chief Justice of Texas. We have come a long way.

Certainly the way we study and teach law has changed over the last 150 years. Some of the challenges in law, however, are as old as the union. Among the challenges: Sharp divisions in our politics that spill over into our law. We have seen very recent examples of this, ranging from matters of life and death to the propriety of 2 words in our pledge of allegiance. Those not satisfied with the legal resolution of these cases see the outcomes as a failure of the judicial system.

Well, depending on the case, I must confess that there are occasions that the judiciary, like all human inventions, produces inequities. But some of the commentary of late suggests a view that the judiciary has somehow become too independent. Fear about the perceived disproportionate power of our courts is not new in our history. Abraham Lincoln, for one, considered arresting the Chief Justice in the early days of the Civil War. Lincoln was responding to then Chief Justice Samuel Chase’s opinion that Lincoln’s order suspending habeas corpus was unconstitutional. Even before that, Thomas Jefferson criticized the John Marshall Court when it asserted its independence as the third branch of government.

But the fight at the extremes of society – whether from the right or the left – takes an exacting toll. Judges are often called activist even when exercising incredible restraint. They are mocked as strict constructionists when application of that philosophy runs counter to accepted political views. At the extreme, these judges are not only vilified but, as we have observed in the last several months, threatened with their lives. In fact the United States Marshal’s Service, which is charged with protecting federal judges, reports that threats against judges have increased dramatically in recent years. We have borne witness to the realization of such threats in Chicago, Fort Worth, Longview.

A society that no longer trusts its judges and its laws is a society on a path to chaos. I fear, to borrow from Lincoln, that a nation divided against its courts cannot stand. More than 200 years ago, the Founders designed a constitutional democracy based on a system of checks and balances, a form of government that is now the model for the world, especially for those new democracies that have emerged in recent years.

A fundamental component of this system, one that foreign leaders recognize as an absolute master-stroke of government design, is the existence of an independent judiciary – you can’t have checks and balances without one – comprised of judges who have the courage to act without regard to political winds; those whose rulings protect individual liberties and prevent tyrannies of the majority. Judges help make the American constitutional design work for all. Our ability to vindicate our free enterprise system and ours fundamental rights exists in the courts. Our ability to challenge constitutional infractions exists in the courts.

Each of us may, from time to time, rail at the system when we disagree with the resolution of the very disputes we ask the courts to resolve. But few of us, I hope, would attempt to inhibit judges from exercising their constitutional obligations of deciding cases fairly and impartially. To place the judiciary under a standard that retaliates against judges for unpopular decisions would be to undermine the basic concept that, in our nation, some positions taken by a political minority deserve constitutional protection.

I hope my comments are not taken as favoring a form of judicial immunity from public criticism. Indeed, in 1895 then Judge William Howard Taft recognized that:

[t]he opportunity freely and publicly to criticize judicial action is of vastly more importance to the body politic that the immunity of courts and judges from unjust aspersions and attack. Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice that the consciousness that every act of theirs is subject to the intelligent scrutiny and candid criticism of their fellow men.

Insofar as fear of public comment does not affect the courage of a judge, but only spurs him on to search his conscience and to reach the result which approves itself to his inmost heart, such comment serves a useful purpose.

Yes, criticism is vital – even for judges, But “the danger of destroying the proper influence of judicial decisions by creating unfounded prejudices against the courts justifies and requires that unjust attacks shall be met and answered.”

From lawyers come judges, and as lawyers you can have a profound influence on the quality of our judiciary and the respect we hope it earns from the public. You must insist on, and fight for, and then defend, a judiciary that respects the rule of law and is dedicated to the reality and appearance of complete integrity.

Your responsibility as a lawyer, and mine as a judge in these uncertain times, is to make sure, to the extent that we can, that the American people understand why we fight to preserve the rule of law.

The history of our nation is marked with examples of how our courts, working independently and free from political intrusion and oversight, lead our nation in times of need — ending segregation, extending voting rights to all Americans and in protecting average citizens from unwarranted government intrusion.

Let me bring you back to a familiar story about the law and about the justice system in this country. Recall the scene in To Kill a Mockingbird. Recall when Atticus Finch explains to his puzzled daughter, Scout, why he’s agreed to represent a black man accused of raping a white woman in Depression-era Alabama:

“There's been some high talk around town to the effect that I shouldn't do much about defending this man,” Atticus tells her.

“If you shouldn't be defending him,” she wonders, “then why are you doing it?”

“For a number of reasons,” he answers her. “The main one is that if I didn’t, I couldn’t hold my head up in town.”

I fear attacks on judges, whether by force or by vilification, weakens the justice system in this country, but I am not pessimistic. I believe that this, too, will pass, as did Abraham Lincoln’s fleeting thought to have the Chief Justice of the United States arrested because he didn’t agree with him.

But the danger lurks and must be confronted. You, new lawyers, should conduct yourselves so that you are able to hold your heads up to support the rule of law. Independent judges cannot exist without courageous and well-trained lawyers who fight not just for their clients but for the system. And the responsibility is not just theirs alone. This is our responsibility, as citizens, lawyers or not. If you keep in mind that you are officers of the court and participants in the public administration of justice, and if you remember these larger responsibilities as well as your immediate duties to your particular client, you will strengthen the legal profession and enhance the role of law in our society. Then you can say, with Oliver Wendell Holmes, that you have lived “greatly in the law.”

Congratulations, and God’s speed!

Related Link:
Texas Supreme Court Chief Justice Jefferson, '88, to Speak at Sunflower Ceremony: http://www.utexas.edu/law/news/2005/042805_sunflower.html