Document Type

Article

Publication Date

Fall 2017

Abstract

It can’t be easy being a judge. The responsibility is enormous: to protect and maintain the rule of law; determine facts and law; resolve disputes large and small; and, in criminal matters, decide whether a fellow citizen remains free or not. In essence, we look to judges to articulate the meaning of “justice”—no doubt knowing all the while, as Clarence Darrow famously noted, “There is no such thing as justice, in or out of court.”

I like and respect some judges, but not as many as I should. While some judges have the requisite ability and temperament for the bench—knowledge of the law, independence, fairness, patience, courage, compassion, and humility—too many do not. Too many are mean-spirited and arrogant, going out of their way to insult, ridicule, and demean those who come before them. In short, they are bullies.

Bullies on the bench may be an inevitable result of our politicized process of judicial selection, especially on the state level, where most judges are elected. Politics doesn’t usually bring out the best judges or the best in judges. Becoming a bully may also be an occupational hazard. When your daily life consists of sitting in an elevated position in judicial robes, with people bowing and scraping before you, it likely goes to your head. As Steven Lubet says, judges are the “maximum boss” and “[e]veryone else is a supplicant.”

This Essay is not about the judges I like and respect, but the ones who have become (or perhaps always were) bullies. Because I am a criminal defense lawyer who has practiced almost entirely in state criminal courts, my stories tend to come from those courts. It might also be that judges are at their worst when they preside over criminal matters.

Publication Citation

Abbe Smith, Judges as Bullies, 46 Hofstra L. Rev. 253-273 (2017)

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