The title of this post is the title of this notable new Yale Law Journal Forum piece authored by Michigan Supreme Court Chief Justice Bridget McCormack. I recommend the full piece and here is an excerpt from its introduction:
For two years, I co-chaired Michigan Governor Gretchen Whitmer’s Jail and Pretrial Taskforce, which collected data, research, best practices, and public comments to make recommendations to reduce Michigan’s county jail populations. The legislature acted on many of these proposals, and the Governor signed nineteen bills in January 2021 that will decriminalize many low-level offenses and divert people from the criminal-justice system. I am hardly alone. I have lots of company in states across the country.
These developments present an important question: what is a judge’s ethical obligation to address inequities in the system over which she presides? From one view, the answer is little or nothing. This view holds that the judge has a limited role in the justice system. Her job is to interpret and apply the law, not to create it, change it, or work toward its improvement. To the contrary, the argument goes, a judge who engages in such activities is overreaching and involved in ethically questionable behavior.
In this Essay, I maintain that this line of thinking is wrong on every count. In Part I, I argue that judges are uniquely valuable contributors to reform efforts precisely because they are exposed to the day-to-day workings of the justice system and the flaws within it. In Part II, I contend that there is no formal ethical obstacle to judges working toward the improvement of the law and the justice system. Although there are some ethical constraints on how judges may do so, a wide range of plainly permissible activities remain. And in Part III, I make the case that judges are not only permitted to engage in reform efforts, but also have an ethical obligation to do so. That is, a judge cannot ignore inequities once she becomes aware of them. To borrow Brendan Sullivan’s phrase, in the dynamics of reforming and improving the justice system, a judge should not be a potted plant.
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