The U.S. justice system

Facts matter, not opinions

2019 January

The late U.S. Senator Daniel Patrick Moynihan once wrote “You are entitled to your opinion. But you are not entitled to your own facts.” It’s my favorite quote from a politician and many others feel the same.

My guess is that as a trial lawyer, you probably agree. Regardless, I’m certain that you understand the difference between fact and opinion.

At every court appearance you make, a jurist ensures that both sides present the facts of the case, not the opinions of the attorneys. That’s why the judge and the jury are referred to as “the trier of fact.” The jury finds the facts, applies them to the relevant law as instructed by the judge and uses the facts to reach a verdict.

But I’m not telling you anything that you didn’t learn in your first year of law school or, if you are of a certain age, in a high school civics class.

As you learned, in this country the idea that facts are the cornerstone of the judicial system goes way back, literally all the way back to the beginning. The Founding Fathers thought so much of the concept that they enshrined it in the Seventh Amendment which states that “no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.”

For nearly 250 years, Americans have understood that our country is governed by laws. It wasn’t even worth a second thought; we just accepted it as one of the cornerstones of our democracy. The Founding Fathers created a unique form of government encompassing three separate but equal branches – Executive, Legislative and Judicial. Every member of the government swears to enforce the words in the Constitution that, among other things, define the role of the judiciary as a co-equal branch of government. Yup, it was all taken for granted. Until now.

From the time he was sworn in two years ago, our current president has made it abundantly clear that he has no regard for facts or respect for institutions that are providers of facts. Examples include the media, science, academia, the intelligence community and, yes, the judiciary.

He only believes his own opinions and it is commonplace for him to publicly belittle and berate those people or things that put out facts that run counter to his own personal opinions.

This president has created an environment that, as the L.A. Times wrote in an editorial one year ago, “Sometimes feels as if facts are now derived from opinions rather than the other way around.”

Next to his number one target, the media, this president is most critical of judges and the courts. Any judge has become a target of the president if the judge’s legal ruling differs from Trump’s personal opinion of the matter.

The Chief Justice takes his shot

Last month his continuing criticism of judges reached a flash point when they elicited a remarkable public response and rebuke from the Chief Justice of the U.S. Supreme Court.

The Washington Post reported on November 21 that “Chief Justice John Roberts directed a rare and pointed shot at the President, defending the federal judiciary in the wake of his criticism of an ‘Obama judge’ who ruled against the administration.”

“We do not have Obama judges or Trump judges, Bush judges or Clinton judges, Roberts said in a statement released by the court’s public information office. What we have is an extraordinary group of dedicated judges doing their level best to equal right to those appearing before them. An independent judiciary is something we should all be thankful for.”

As trial lawyers can attest to first hand, attacks by the president on lawyers, judges and the justice system undermine the public’s confidence in the judicial institution and in the rule of law.

As serious as presidential attacks on judges are, that’s not all that trial lawyers should be concerned about. As they say in late-night cable TV infomercials, “But wait, there’s more!”

In the two years of his term in office, the president has made it clear that he prefers to surround himself with people who echo his opinions and beliefs, not with advisers who provide him factual counsel.

And a new Attorney General

Many are in positions that, while important, can’t truly harm the country, but that’s not the case with the Attorney General of the United States. The Attorney General is head of the U.S. Justice Department and Chief Law Officer of the federal government. He or she represents the United States in legal matters generally, and gives advice and opinions to the president and to other heads of executive departments as requested.

That’s why it was deeply concerning to trial lawyers when the president named Matthew Whitaker as acting attorney general, replacing the fired Jeff Sessions. Whitaker has been quoted numerous times agreeing with the president’s opinions and goes even further when it comes to the courts. As the New York Times wrote in November, “he once espoused the view that the courts are supposed to be the inferior branch and criticized the Supreme Court’s power to review legislative and executive acts and declare them unconstitutional, the lifeblood of its existence as a coequal branch of government.”

The Times went on to report that Whitaker believes that the federal judiciary has too much power over public policy. Like Supreme Court Chief Justices, jurists, trial lawyers and the rest of us, the Founding Fathers would be aghast. And that’s a fact.