Judges must explain themselves and what they do to the general public, former British Supreme Court chief justice Lord John Thomas told The Jerusalem Post in a recent exclusive interview.
Speaking after a Hebrew University of Jerusalem conference on judicial independence last week, Thomas told the Post, “Judges need to explain their positions. You cannot shut yourself away. You have to... keep your personal life out of it... but you owe a duty to try to explain to the public what you do as a judge.”
“Most people’s conception of judges is they decide issues, and criminal [law decisions] get the most publicity,” said the former British chief justice.
He said, however, that the general public does not really understand the role that a judge in England has, or in general, in issues the public gets heated about such as sentencing, deciding when to send or not to send someone to prison, or whether a prison sentence is too short or too long.
“It is critical to explain things properly in words that regular people can understand, and to make decisions and other information available to journalists in a way people can understand, so both journalists and the public can read it,” he argued.
Moreover, he said, “My views have changed over the years about should a judge try in a minute or less than a minute,” to explain the core of their decision. “The attention span of the public could be 20 seconds. Do you explain why you are doing something in a mere 20 seconds,” which can lead to losing a lot of the nuance?
In any case, he said, “Most lawyers are very bad at this, and judges need to find the best ways to communicate the reasons for their decisions, even to encapsulate in a sentence or two, so it can be broadcast is a good thing.
“What judges should always do is make certain judgments are not too long. If it is long, then write a summary of not more than one page,” he advised.
Further, he said, “The language of that summary must be in a [common] language [and] not just [language] that will appeal to lawyers. It must appeal to the general public.”
Addressing some judges’ claims that lecturing at public lawyer conferences is a way they do outreach to the public, Thomas said, “A lecture is very valuable for lawyers, but it has very little value for other people,” noting the kind of lectures judges give can also determine whether they are effective in outreach.
He said judges should be careful about lecturing on popular issues that can easily erupt into conflict. Thomas explained that many judges could be strong intellectuals, but that having keen political instincts is a very different skill.
“A judge’s political instincts must be quite high before they can address” controversial public policy decisions, even for past rulings no longer pending due to both giving some commentary, while not falling into a partisan debate.
Addressing the possibility of televising court proceedings, he said, “It is right to televise arguments. This has been good. The Supreme Court has done this in the UK. Some lower courts have done this in the UK.”
At the same time, he warned, “Speaking on television you must be careful. One of our very senior judges appeared on” a program where any spontaneous questions could be asked, and he said this was “a terrible mistake which was never repeated.”
The key, he said, is for judges to speak on a set, pre-agreed subject, noting, “I’ve been prepared to do two- to three-minute interviews,” such as discussing the importance of opening a new courthouse for the sake of humanizing judges and showing their connections to local communities.
Regarding relations with the media more broadly, he said, “Judges do underestimate the importance of journalists. In the UK,” much of the judiciary is very reluctant to work with journalists.
On the other hand, Thomas rattled off a list of highly respected legal journalists who recently retired, saying this could create “real problems if you do not have journalists of sufficient expertise who can explain problems. The role of legal journalists is absolutely central to informing people.
“Every year, the president of the Supreme Court and the chief justice appear before the House of Lords Constitutional Committee and the House of Commons Justice Committee. These sessions worked and enabled one to relate publicly to the relations between judges and the political class,” he stated.
“Judges should go to schools and explain what they do. The Jesuits were always right: The younger you can get at someone with ideas, the more likely you can convince them.”
At the same time, he warned, “What they [judges] must not do is go beyond what they say in the judgment.... A judgment speaks for itself – otherwise the authoritative word of the court will be diluted by the judge.”
Next, he posited that judges “have to show they run an efficient system, that cases aren’t delayed and that there is proper access to justice. If proper access is delayed due to the government not giving enough funding, you can make that clear, but you have to explain what you do.
“You must explain decisions that pertain to the system so you can be perceived as accountable. Judges are accountable, but by a different process. Certain judicial systems have not gotten used to explaining their role,” he said.
He added that when judges do explain their role, they need to make sure “they don’t become embroiled in the political fortunes of the time.’
Questioned whether judges can get their nuanced message out to the public in an age dominated by polarization and lower-brow social media, he stated, “We’re going to see this play out in a number of respects. There was a certain worry about Eastern Europe with the way the political situation was developing, such as between the politicians and the judiciary in Poland.”
Now, he said, everyone knows “this was not an Eastern European phenomenon. Look at other democracies. There is an issue: people are intolerant of certain views. This makes more civilized conversations more difficult.
“I do think legal journalists can be used to communicate and to understand judges. It is different with social media. There is no intermediary,” which puts judges in much more danger of being misunderstood or of being caricatured.
“I never had a Facebook or any other form of account. Any judge who has one, it is extraordinarily unwise,” he cautioned.
He demurred from giving commentary on Israel’s justice system, saying, “I don’t understand enough details of the political system, how it works and how the media works.”