The enemy within the judicial gates

Chief Justice John Roberts famously identified violence, intimidation, disinformation, and defying lawfully entered judgements as four areas encroaching on the independence of judges. Now there’s a fifth: calculated infiltration of the judicial system to influence case outcomes.

After tobacco litigation culminated in multibillion dollar settlements, trial lawyers lit upon climate change as a potentially lucrative new area for liability claims. With the U.S. oil and gas industry generating average annual revenues of around $1.3 trillion, the profitability of such lawsuits was obvious.

More than 3,300 climate change cases later, activist allies assessed that the best way to get judges to agree on a deep-pocketed culprit for something as amorphous and evolving as the weather is to “educate” the judges.

Judges’ views on climate change are being influenced by seminars given by the Environmental Law Institute’s Climate Judiciary Project, which brags that their purpose is to build and enable “a network of judges and scientists advancing climate science education for the judiciary.” It is taken by judges who may oversee cases in which plaintiffs allege injuries from the manufacturing, marketing, use or sale of fossil-fuel products. Such “education” leaves them vulnerable to charges of bias.

More than 2,000 judges have participated since 2018, though their names and testimonials were anonymized or removed once attention was brought to possible conflict of interest. At least two judges who presided over climate cases have been publicly identified as being involved with Environmental Law Institute education and events. Furthermore, this education was financially supported by multiple groups who also give millions to the very law firm bringing the litigation before the courts, Sher Edling.

Another attempt to influence judicial views popped up in the latest edition of the Federal Judicial Center’s Reference Manual on Scientific Evidence. This volume included, for the first time, a chapter on climate science.

“It amounts to a sweeping brief intended to influence judges to think every harm from climate change is the result of fossil fuels,” said the Wall Street Journal . The volume’s climate chapter “was an abuse of science by political actors who tried to hijack a tool of judicial education to serve the interests of the plaintiffs’ bar in the cause of bankrupting fossil-fuel energy companies.”

Disturbingly, textual analysis indicates that one of those actors appears to be Michael Burger, who is both executive director of Columbia’s Sabin Center for Climate Change law and of counsel at Sher Edling.

Though the Federal Judicial Center removed the chapter from their online version, publication partner National Academies of Sciences, Engineering, and Medicine has retained it, leaving open the question of which version of the manual is authoritative. It is unclear which version will be or was shipped to judges, even after Trump recently called on federal suspension and debarment officials to review conduct of officials at the academies.

External groups seeking to take over judges’ views is one form of infiltration. Another, more sinister form, is demonstrated in the undermining of objectivity on the bench. Judges overseeing cases involving Trump have allowed their personal feelings to go unchecked. The unfortunate result is that rulings betray their adversarial posture toward Trump, which undermines the appearance of impartiality. As an example, U.S. District Judge William Young quoted Shakespeare and his own wife in calling Trump a tyrant. Incendiary statements like these makes it look like a judge is on a personal mission, supposedly to save the world from Trump.

Some federal district court judges have gone so far as to openly defy the orders of the United States Supreme Court. This led Justice Neil Gorsuch to write of these instances, “Lower court judges may sometimes disagree with this court’s decisions, but they are never free to defy them.”

When judges inject their personal views into a case, or law firms entice state officials to misuse their positions, our judicial system suffers. Courts, as an institution, rely on public trust. To preserve that trust, judges must make every effort to show the public that they are fair—that they have not made up their minds before they hear the case based on who the parties are or what they personally think is the right decision. When that fundamental perception of fairness is lost, public trust is broken.

As Roberts advised , when our judicial system is distorted “in ways that compromise the public’s confidence in our processes and outcomes, we must as a nation publicize the risks and take all appropriate measures to stop them.”

Judges who obviously inject personal views and political perspectives into their decisions must be forced to publicly answer for their improper conduct. Currently, any member of the public can file a complaint with a state judicial conduct commission or the relevant appellate court. At the federal level, these complaints are adjudicated only by other judges. This should change to include lay members of the public, similar to Arizona’s commission on judicial conduct.

Let public accountability begin to reinforce private trust.

Andrew Gould is a partner at Holtzman Vogel and a former Arizona Supreme Court justice.