Opening Statement. Respect for the Judiciary

• Author: James A. Reeder Jr.
• Pages: 4-4

Opening Statement

Published in Litigation, Volume 47, Number 4, Summer 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not

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JAMES A. REEDER JR.

The author is a partner with Jones Day, Houston, and chair of the Litigation Section.

My desire to devote this year to the theme

of respect emanated from a long-standing

interest in the independence of the judiciary.

If you have read my previous col-

umns, you know that my dad was a law-

yer who had a tremendous influence on

me. I learned about judges early on, as

when I was four, my dad ran for a bench

in Caddo Parish, Louisiana. He painted

a bass drum red, white, and blue, with

“Reeder Republican for Judge” painted on

the head, and tied it to the top of his 1960

Chevy Biscayne. He lost... as did every

Republican in Caddo Parish who ran for

anything up until 1980. Shreveport was

the home of many great judges. My dad

had a law partner named John R. Pleasant,

who had been a state district court judge

in Caddo Parish and whom I affection-

ately called “Papa Judge.” Another one of

my father’s law partners, Henry A. Politz,

my godfather (“Uncle Hank”) and a huge

influence on me, ended up as chief judge

of the Fifth Circuit. I grew up with Fifth

Circuit Judge Jacques Weiner’s kids in

Shreveport. Judge Tom Stagg lived around

the corner. I share my Shreveport roots

with another Fifth Circuit chief judge,

Carl Stewart, who remains a good friend.

All this is to say that I have had an ap-

preciation for the role and function of

the judiciary from an early age. I don’t

remember being aware of the decisions

of John Minor Wisdom or the controversy

surrounding Fifth Circuit decisions about

civil rights in the early 1960s. I do remem-

ber, at five and six years old, sitting in the

back seat of my dad’s 1960 Chevy while

he and Uncle Hank spent countless hours

registering Black people in Shreveport to

vote. I remember the first time I heard

someone refer to a judge as an “activist”

judge. It was a pejorative criticism of a

federal judge who had decided a voting

rights case in favor of the Black plaintiff.

The reference made my skin crawl.

An independent judiciary is a brilliant

concept. Beholden to no one; free to ob-

jectively interpret and apply the law. It is

not intended to be democratic. It serves

only one constituency: the rule of law. My

dad used to tell me, “It should come as

no surprise that if you put the rights of

the minority to the vote of a majority, the

minority will lose.” This is the essence of

an independent judiciary. Its purposeful

lack of populist influence, however, is of-

ten the very basis of critics’ attacks. The

phrase “judicial activism” was apparently

coined by Arthur Schlesinger in an article

in Fortune in 1947.

I have discovered that judicial activism

can mean at least two different things: (1)

the willingness to strike down precedent

or the actions of other governmental bod

-

ies, the opposite of judicial restraint; or

(2) deciding cases on policy preferenc-

es rather than an honest interpretation

of the law. The former may be a judicial

philosophy that should be taken into con-

sideration when appointing a judge, but

it isn’t in itself illegitimate. It is the latter

definition, however, that we need to elimi-

nate from our vocabulary. The assertion

is rarely based on any evidence that the

judge actually intended to ignore the law

but, instead, presumes as much, because

how could anyone honestly applying the

law come to a decision that was the op-

posite of the critic’s policy view? For that

reason, its use is intended to and is often

successful in undermining the reputation

of the judiciary and its judges. It is a di-

rect attack on the foundation of judicial

independence. Such criticism exposes a

fundamental lack of understanding of the

Constitution and reflects a lack of respect

for our judiciary and all judges.

Respect for the judiciary means recog-

nizing and proselytizing that every judge

is trying as hard as he or she can to in-

terpret and apply the law, unaffected by

popular sentiment or political ideology or

personal preference. Judges may be strict

constructionists or originalists or textual-

ists or activists (in the traditional sense),

but they are each deserving of our thanks

and our respect for their undying devotion

to the Constitution and the rule of law. q

RESPECT FOR THE

JUDICIARY