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The Far removed from everyday experience, decisions of the high
The Supreme Court of the State of Illinois. Seated from left are Justices Thomas J. Moran of Waukegan, Joseph H. Goldenhersh of Belleville, Robert C. Underwood (who has announced he will retire in December) of Bloomington, Howard C. Ryan (current chief justice) of Tonica, Daniel P. Ward of Chicago, William G. Clark of Chicago and Seymour Simon of Chicago. April 1984/Illinois Issues/11
THE TYPICAL view of high courts is characterized more by myths and "Law Day" platitudes than anything else. Political scientist/lawyer Harold Spaeth has remarked, acerbically, that high court judges "... are viewed as bloodless incarnations of human rectitude. From their lips flows a steady stream of sapience. From their pens flows not ink but rather moral concrete into which their judgments are set. Americans believe (or at least hope) that judicial decisions are value-free, essentially non-discretionary and objective." Such views persist, in part, because of the absence of readily available information to compete with the myths and platitudes. In order to dispel such myths, at least of the Illinois Supreme Court (ISC), this article provides information on the seven men who now comprise the ISC, the activities of the ISC, and how the justices see their role as members of the state's highest court. The third of a series of articles on Illinois judges, it is based on interviews conducted with each of the justices during the spring and summer of 1983 and an examination of their work for 1982. (Since we promised them anonymity, we will not mention them by name.) The background The ISC is composed of seven justices (historically it has varied from three to nine), each elected for a 10-year term on a partisan ballot. Three are elected from the First District, Cook County, and one each from the remaining four districts into which the rest of the state is divided. Every three years the members of the ISC choose among themselves one of their brethren to serve as chief justice. Throughout most of its history the ISC worked under the burden of a largely mandatory jurisdiction, meaning that it had little control over the number and nature of cases it heard. In the past, the ISC's docket was at times startlingly large. For instance, in 1982 just under 200 opinions were issued, in 1875 just before the creation of intermediate appellate courts 654 were issued, and even in 1905 the total was over 500. Throughout most of the ISC's history its docket was comprised of relatively minor, mundane issues. Starting early in this century reformers called for changes in the ISC's jurisdiction to ease that burden and allow the ISC to concentrate on new and important issues of broader impact. It was not until 1964, however, that significant changes were finally made. Today, the ISC is what an ISC justice called a "discretionary court." The 1970 Constitution gives the ISC almost complete discretion in choosing the cases it will hear with only a few specifically mandated exceptions (perhaps the most important being death penalty cases). As a result, the ISC can virtually control the size and nature of its caseload. In a 1974 address to the Illinois State Bar Association, then Chief Justice Robert Underwood remarked that, in his estimation, the ISC ". . . was for the first time in the history of the state, performing the function ... a state court of last resort should perform." It was, he thought, taking cases "... because of their significance to the state as a whole. ..." And this is precisely what reformers since the turn of the century have wanted. In all of our interviews, the justices repeated the idea of the ISC as a policymaker and not merely a court of error. By this they mean making rules and guidelines for others and not just correcting the mistakes of others. As we shall subsequently see, however, the justices do not necessarily see the ISC as an unbounded or unfettered policymaker making broad policies for the state generally. While the justices disagree about exactly what this means in practice and how well it is being done, all of them see the ISC as a policymaker which properly should spend its limited energies on the important issues, leaving error correction and the more mundane issues to the Appellate Court. In short, there is a rough institutional consensus of sorts, but still conflict within it. Although little appreciated outside of the judicial system, the 1964 reforms constitutionally vested in the ISC general administrative and supervisory authority over all Illinois courts. This authority is exercised by the chief justice, but not alone. The ISC has the power to appoint an administrative director and staff — its own small bureaucracy — to assist it. Prior to 1964, there was little general administrative authority, and individual courts throughout the state were largely autonomous. Today, the ISC's authority ranges from such organizational concerns as the assignment of judges to division within appellate districts, providing for the manner of appointing associate judges in the circuits, prescribing rules of conduct for judges, running the state's probation system and so on, to suck bureaucratic concerns as budgeting, fiscal management, record keeping and research and planning. The ISC's authority over the state's judicial system 12/April 1984/Illinois Issues is relatively complete and unrestricted; in short, the ISC runs the judicial system. Although its authority is statewide, much of it is actually delegated to the chief judge of each appellate district and the chief judge of each circuit as well as the Administrative Office of the Illinois Courts. It is as if the ISC were the board of directors of a large, statewide organization with the chief justice as the board's chair, the administrative director as the chief executive officer and the various chief judges as regional managers. In our interviews, each of the justices emphasized the importance of this role, and stressed it as one of the primary differences between the functions of the appellate courts and the ISC. While no justice questioned the idea of a court playing such a role, more than one did suggest that the ISC's overall workload could be decreased if more were delegated rather than handled by the ISC itself. Even though each justice may take responsibility for certain matters in his district (such as the filling of judicial vacancies created by death or resignation), the chief justice is the only member of the ISC who must devote a significant amount of time to administrative matters. In our interview he noted that 60-70 percent of his time goes to administrative matters involving the ISC itself or the rest of the system. The justices The 1970 Illinois Constitution gives the ISC a broad set of powers and places them in the hands of justices elected for unusually long terms. For us this raises a set of basic but important questions about the ISC and its members: Who becomes an ISC justice? How does one become a justice? What does the ISC choose to do? And how do the justices see their role as members of the state's highest court? These questions are important because their answers help us to understand how the ISC uses its broad powers as well as the people who exercise them. We will discuss the first two — the who and the how — in this section. Underlying them is the recruitment process. Most simply, asking about recruitment means asking about the pool of potential ISC justices — the kind of person who becomes a justice, the professional and/or political experiences leading to a seat on the state's high bench, and what difference these experiences make. The next two questions — what the ISC does and how the justices see their role — are discussed in the following sections. The former involves looking at what the ISC actually does with its discretionary power and what kinds of cases it chooses to hear. The types of cases the justices deem important enough to spend their time on provide insight into the role they believe the ISC should play in Illinois government. The latter deals with the same thing, the ISC's role, and involves asking the justices how they view their job both in terms of assessments of what they actually do and more general notions of what they believe to be appropriate or inappropriate for them to do. Together, the answers to the questions we pose should dispel some of the mythology of high courts and deflate some of the "Law Day" platitudes.
In looking at recruitment our interest centers on three types of characteristics: personal, professional and political. Starting with the personal characteristics, we find that the current members of the ISC resemble, in some respects, both the judges on the lower courts and their recent predecessors on the high court (the 20 other men who have served since 1950). All seven current justices are white and male. The average age is about 65, six years older than the average appellate judge and 13 more than the average trial judge. This age differential reflects the somewhat longer road to the high bench, and for five of the seven this meant spending some time on the lower benches along the way. All seven were born in Illinois and have spent most of their lives in the district they now serve, a facet of localism characteristic of Illinois lower court judges as well. As their post-1950 predecessors, no present member of the ISC has spent any significant part of his professional life working outside of Illinois. The average age at which the current justices attained their position is just over 54, and the average for all justices since 1950 is 56. This contrasts to an average middle-forties for current trial judges and earlier fifties for current appellate judges. The average tenure for the seven is a little over 11.5 years as a justice, with a maximum of 21 years as of this writing and a minimum of three. This is longer than the average for all 99 men who have served on the ISC — 8.4 years. The current maximum tenure falls short of the 30-year record for ISC longevity shared by Thomas C. Brown (1818-1848) and Clyde E. Stone (1918-1948). Five men share the record for brevity of ISC service — less than a year — and perhaps they are best left to the obscurity of history. The current justices are primarily Illinois educated as is true of the lower court judges and all post-1950 justices. Only one current justice did not spend at least some time in an Illinois college; most studied political science and/or pre-law as undergraduates. All but one were graduated from an Illinois law school. The localism reflected by Illinois legal training is evident throughout the state's judiciary. About 82 percent of the appellate judges we surveyed were trained in the state as were about 75 percent of the trial judges surveyed. Of the post-1950 ISC justices holding law degrees, about 88 percent received it in Illinois. As in our surveys of Illinois lower court judges, we sought a rough indicator of social status by asking the justices about their fathers' occupations. The current ISC members come from middling backgrounds. Not one of them can be said to have come from a privileged background, but none emerged from so a humble a background as one of their recent predecessors, Jesse Simpson (a justice from 1947 to 1951), who worked at 16 as a railroad section hand and later as a telegraph operator before saving enough money for law April 1984/Illinois Issues/13 school. Only one current justice's father was a lawyer. The remaining families were two merchants/store owners, one policeman and later police chief, one street car motorman, and one real estate agent/local politician. The justices' backgrounds resemble their appellate brethern more than they do the trial judges. Comparing appellate and trial judges in our earlier surveys we found that appellate judges tend to come from a somewhat higher social status than trial judges, are less likely to come from a blue collar or farming family, more likely to come from a managerial or professional family, and their fathers were more likely to have been lawyers (though most were not). Turning to professional backgrounds, five of the seven justices came to the ISC directly from a lower court, one came from a state's attorney's office, and the other from private practice (which was preceded by a long political career). Of the five with prior judicial experience, three served on the trial bench (for an average of 12 years); four served on the appellate bench (for an average of nine years); and two served on both levels and are, in effect, career judges (one serving for a total of 19 years on the lower benches, the other for 16 years). Four of the justices had at least some prosecutorial experience, but only one had extensive experience. While all had some experience in private practice, only two can be characterized as having had a career primarily in private practice. Four justices held at least one elective office (other than judge) earlier in their careers, including two as state's attorneys. Finally, two had extensive nonjudicial political careers, one strictly on the local level, the other largely on the state level. While there may be different roads to the ISC, it seems that the main route is from within the judicial system, either from the lower courts and/or prosecutorial positions. This becomes even more evident when we look at all 27 post-1950 justices as a group (this includes the seven current justices). Seventy percent had at least some prior judicial experience with an overall average of nearly 13 years of lower court service, and a full two-thirds came to the ISC directly from a lower judgeship. Over half had at least some prosecutorial experience. Only six could be considered career politicians in any sense, but a little over half held at least one elective office, typically on the local level. While all spent varying amounts of time in private practice, only five men came to the high bench directly from private practice. Politically, the ISC is closely divided with four Democrats and three Republicans, and this largely appears the result of the way the state has been districted for ISC elections. Three of the four Democrats, not surprisingly, come from the First District (Cook County) and the fourth comes from the Fifth District (southern Illinois). The three Republicans come from the remaining three districts (which cover the central and northern parts of the state). This districting arrangement is likely to maintain a close party split and will probably prevent the ISC from being totally dominated by either party. In strength of party preference, we found the justices collectively stronger Democrats and Republicans than either the appellate or trial judges. No justice described his preference as weak. Two assessed their preference as moderate, and five as strong. Ideologically, the ISC is evenly split. Three justices describe their stand on political issues as essentially conservative, with one leaning towards strong conservatism. Three describe themselves as being essentially liberal, with one leaning towards stronger liberalism. The seventh member describes himself as generally being middle-of-the-road. This split contrasts with a trial judiciary which tends more distinctly towards conservatism. The appellate judiciary is somewhat less conservative, being generally middle-of-the-road but with a noticeable tendency toward moderate conservatism. Five important things emerge from this rough portrait of the justices. First, the recruitment process has produced a high bench which, not surprisingly, has been all white and male. This is true of the Illinois judiciary generally which is over 90 percent white and male. Second, there appears to be a rather distinct recruitment process that tends to bring lower court judges to the ISC, though not necessarily from the appellate bench. This means, in effect, that getting to the ISC is a two and possibly three step process — either trials or appellate court and then ISC, or trial and appellate court and then ISC. In either situation, these steps act as important filters. If an attorney is unable to make it through at least one of them, the odds are that he will not make it to the high bench. While some have reached the ISC by going around these filters, there seems to be no specific alternative route around them; each seems largely idiosyncratic. Third, the ISC justices are less conservative collectively than the low court judges, but overall the Illinois judiciary can accurately be characterized as moderate to conservative ideologically. As we move up the court tiers, the judges on average seem to be less conservative, but no level — including the ISC — can clearly be characterized as liberal. While neither political party can be said to dominate the judicialy statewide (although there are, of course, regional pockets of party dominance), we find the higher the court level, the stronger the commitment to political party. Fourth, though much diluted by the size and diversity of the districts, there is still as much a flavor of localism at the high bench level as there is on the lower. Since 1950 most ISC justices are native Illinoisans, educated in Illinois, and spend their professional lives almost exclusively in Illinois. In addition, most of their professional and political experiences tend to be centered in one locale in Illinois — few had statewide experience. Finally, while not literally the same as their lower court colleagues in regard to personal, professional and political experiences, the ISC justices are not different in any significant sense. The docket Under Article 6, Section 4 of the 1970 Constitution, the ISC has the discretion to determine much of the nature and volume of its docket in the following way: through the exercise of its power to make rules defining categories of cases it will hear, and by devising rules and practices for determining which specific cases it will hear. The only major exceptions to this basically discretionary control over the docket are certain narrowly defined constitutional areas in which the ISC has original jurisdiction (in effect it 14/April 1984/Illinois Issues acts as a trial court) and in death penalty cases which must go directly to the ISC from the circuit court. Over 80 percent of cases accepted for review by the ISC in 1982 — the year we examined — came through the lower courts. Furthermore, over 90 percent of the opinions issued were in areas of discretionary rather than constitutionally mandated jurisdiction. While this percentage may vary somewhat from year to year, largely as a function of the number of death penalty cases, it is unlikely to dip consistently below 80 percent. Most of the ISC's business comes from the five intermediate district appellate courts on "leave
Most significant for our interest, the ISC's docket does not reflect a court striving to be an active maker of social policy for the state or a court with a broad-ranging viewpoint. Two areas, criminal and tort (including workmen's compensation), virtually tied for the largest proportion of the 1982 opinions. Each comprised about a third. The next largest, and only other major portion of the docket, consisted of attorney discipline matters. Together, these three areas made up almost 80 percent of the opinions issued during 1982. This docket suggests a court that sees itself primarily as a supervisor of the state's criminal justice system, of the state's workmen's compensation system (though this is changing) and of the process of disciplining attorneys. Although the ISC will occasionally tackle a big social or political issue, it is primarily internal in orientation (internal to the judicial system) rather than external (issues effecting the state more broadly). Given its largely discretionary docket control, this supervisory role is an institutional role seemingly chosen by the ISC. It is precisely this rather narrow, internal orientation as supervisor of the state's judicial system that is the role described — with variations — by the justices in our interviews. Though undoubtedly extreme in the eyes of some of the justices, the idea is nicely summarized by a remark made in one of our interviews. One justice said that the ISC "... shouldn't be coming out with great pronouncements for the people of Illinois." April 1984/Illinois Issues/15 Perceptions In an earlier article we characterized Illinois trial judges as essentially "pragmatic fact-finders" with a very limited, immediate view of their function. In a second article we characterized Illinois appellate judges as "reluctant, ambivalent policymakers." The appellate judges seem unsure about their broader role and limit it, generally, to problems internal to the judicial system. The position shared by the seven members of the ISC requires that they play a still broader and different role. Its role is one with an open-ended potential that would allow the ISC, if it chose, to become a major innovator and policymaker for the state as a whole, and not just the judicial system, in a way akin to the activism of the federal courts or the supreme courts of some states, such as California. ISC justices, however, have apparently chosen a much narrower, more limited institutional role. Even though the ISC justices do not exhibit the same kind of ambivalence or reluctance about policymaking as the appellate judges, the justices still express an orientation toward policy-making that is limited and narrow. As a general statement, the justices believe that their position requires them to play a very active, energetic role, but not beyond the boundaries of the state's judicial system. There is, then, a very real sense of "boundedness" for most of the justices, but the bounds on the scope of policymaking are largely self-imposed since the nature of the ISC's powers would allow a broader role. The best way to convey the idea of activism and limitation, and what it means, is through a discussion of the judges' perceptions of their role. While the justices certainly do not agree on everything — or even most things — they all readily agree that their position requires them collectively to play the role of an active, energetic supervisor of the state's judicial system. (The term "supervisor" was the one most of them used.) This is illustrated well by their willingness to reverse lower court decisions. There were 167 opinions issued in 1982 involving lower court decisions. Forty percent were reversed and another 15 percent were reversed in part/affirmed in part. Forty-four percent were affirmed, and the remaining 1 percent were dismissals of appeal. As a general rule, cases reaching the court on leave to appeal petitions (over 90 percent of which come from the appellate court) were more likely to be reversed than cases coming to the ISC on direct appeal from the circuit court. In other words, it seems the ISC uses it most wide-ranging discretion, that involved in making those case-by-case determinations on leave to appeal petitions, largely to reverse lower court decisions (especially appellate court decisions). Here its supervisory role seems the most vigorous because these cases are supposedly taken for their general importance rather than their importance to the parties involved. In direct appeals the ISC tends simply to affirm the trial courts' decisions. For example, in workmen's compensation cases, the largest category of direct appeals, almost three-quarters of the cases were fully affirmed. (The fact that the ISC tends to simply affirm workmen's compensation cases may explain why the justices no longer feel the need to continue allowing direct appeal in these cases.) In direct appeal situations, the court's supervisory role is more one of a court of error — correcting lower court mistakes usually effecting only the parties involved.
The supervisory role is framed by the ISC's administrative authority and the fact that it is a "discretionary court." These two things were consistently mentioned by the justices as important factors distinguishing the ISC from the lower courts, especially the appellate courts. The supervisory role seems to have an important effect on the justices' views since it most fundamentally distinguishes the ISC. As an administrative body with a constitutional charge to oversee the system, the ISC is more than a court. The discretionary control over the docket is a crucial adjunct to this and a key mechanism that allows the ISC to supervise. For the justices it means that the ISC should spend its time only on the most important issues and problems within the judicial system. The appellate courts, as one justice said, should handle the rest and act as a filter distilling the major issues for the ISC. (The justices, however, disagree as to whether things actually work this way and whether the ISC is handling only the more important issues.) The underlying goal of this institutional role, according to the justices, is ensuring continuity and stability in Illinois law. Only two justices seem to see it as in any way including broader goals, and only one argues vigorously in favor of a broader, externally oriented, social policy perspective. 16/April 1984/Illinois Issues An important aspect of this supervisory role is policymaking. Supervision of the judicial system means making policy for it. All of the justices matter of factly accept this, though not necessarily in identical form. For example, one of the justices described the ISC as "a policy setting agency for the lower courts," and another said it "determines the rules for trial courts and appellate courts." But again, we must emphasize that for most of them this is a distinctly bounded idea of policy-making. Within the boundaries the justices have set for themselves, however, there seem to be few limits. For example, some of the justices even though noting the practical reasons (primarily stability) for adhering to the doctrine of stare decisis (the rule of precedent), confidently reminded us that the ISC is not required to follow it. One simply said, "There is no stare decisis for the Supreme Court." Beneath this rough institutional consensus there are real differences both in personal judicial philosophy and, of course, over the substantive merits of issues coming to the ISC. But few of these differences consistently emerge in any noticeable way, and few follow party or ideological lines. There is a general sentiment among the justices for flexibility and a certain amount of discretion in decisionmaking. They believe the law should be a framework in which to work, not a straightjacket. There is a general sentiment as to the inevitability (but not always the wisdom) of judicial lawmaking, but also as to the practicality of following the rule of precedent. Even though there is general sentiment in favor of flexibility and discretion, there is a real split on their limits (the four Democrats seem to see fewer limits, while the three Republicans see more.) And, even though there seems to be a rough institutional consensus on the ISC's supervisory role, there is at least some sentiment for a broader, more external orientation. Three of four Democrats would allow for a somewhat broader view — or at least more room for exceptions to the limits of the supervisory role. The three Republicans plus a fourth Democrat think the boundary should remain tight, making few exceptions. It is here, with the range of possible exceptions, that the real disagreements may be. In our interviews, each of the justices admitted that there was room for exceptions when discussing the boundaries on the ISC role, but, it seems, the making of exceptions is in practice a matter of ad hoc determinations. As one justice said, such things "involve a delicate balancing of factors." Exceptions may arise, as more than one justice suggested, in "first impression" cases — cases in which the ISC faces a new issue for the first time and for which no legislation exists. They may also arise in situations where it is felt that the ISC must act. As one rather conservative justice characterized it, things sometimes reach "a point where frustrations with inequities and problems become so great that the court may be compelled to act." The problem for the justices, he went on to say, is where to draw the line. Although we have no direct evidence, we have the feeling that when the justices argue about the scope of their powers — as our interviews suggest they undoubtedly do — it is less about abstract notions of the judicial function and more about the practical issues involved in the range and applicability of the exceptions. These are pragmatic and realistic men, not doctrinaire proponents of differing schools of legal thought. The differences among these seven men are real; they are men of strong views. The differences, however, seldom appear directly. The voting patterns we found in the 1982 cases are revealing in this regard: The bulk of the cases (76 percent) were decided unanimously, fewer than 5 percent were decided by a one-vote margin, and this April 1984/Illinois Issues/17 is typical of voting patterns in the ISC over the years. Moreover, if there is little dissent, then there is little room for any significant amount of partisan voting. More than one of the justices remarked that the nature of their business is often rather "cut and dried," not lending itself to much dissent or partisan division. For the 1982 cases, 70 percent of the criminal matters were decided unanimously as were 85 percent of the workmen's compensation cases. Interestingly, the area reflecting the greatest amount of conflict was the one most obviously an intrasystem concern — attorney discipline matters. Only 56 percent were decided unanimously. Some of the justices also hinted that dissent may be discouraged by the ISC's workload (it requires extra work and effort), and by the way in which opinions are assigned to be written. A process not generally known, opinions are assigned by lot, not by the chief justice nor by preference or expertise. The author of an opinion is to craft a document reflecting the ISC's view as it emerges from discussion and preliminary voting in conference and from subsequent comments on drafts; the opinion is not the author's own view on the issue. Once in a while an opinion does not satisfy a majority and the author feels too strongly to acquiesce. Here the justice will take a "reject" on his opinion and turn it into a lengthy dissenting opinion. One justice suggested that unless a justice feels especially strong about an issue the tendency is to acquiesce in both voting and opinion writing. The institutional consensus is, perhaps, more a matter of implicit operating norms than a self-conscious agreement on particular issues. Implications A number of implications emerge from our interviews. First, the debate concerning the "proper" role of courts engendered by the actions of the federal judiciary in recent years would be out of place in Illinois. There is no "imperial judiciary" here. From top to bottom, the Illinois judiciary is characterized by a distinctly narrow but quite pragmatic, internally oriented perspective. Generally speaking, even the ISC justices eschew the kind of social policy perspective associated with the federal courts. This does not mean that the ISC will not occasionally handle a big issue, but it does mean that characterizing the ISC in terms of these occasional decisions would be a fundamental misunderstanding of its primary role. Second, the ISC's internally oriented, supervisory role must not be understood as general passivity. Within the boundaries it has set for itself, the ISC is quite active. The justices believe the ISC's constitutional grant of administrative authority and its position as a "discretionary court" atop the judicial system require it to be very active. There are few set limitations on these activities; not even stare decisis necessarily places limits on the ISC. Third, the ISC is unlikely to change its role drastically because of the distinctive recruitment process which brings men to the high bench. That process tends to bring to the ISC men from within the system, most
Finally, is it good or bad for Illinois that the ISC plays the role it does? This is a difficult question to answer dispassionately because it, as all questions concerning the "proper role" of courts, depends on "whose ox is being gored." It is no coincidence that most answers depend upon whether one agrees or disagrees with the results of court activity. Whether we agree with it or not, the role played by the ISC is a reasonable and appropriate one and for the most part is the one intended for it by reformers throughout this century. Of course, it is not the only possible role a state high court could play, No one objects to this role per se; the disagreements concern how well the ISC performs the role and how much more it should do. We noticed in some of the interviews an undercurrent of criticism that the ISC was not performing its role as well as it could. These justices as well as some external critics suggested that alterations be made in the ISC's docket. In particular, both sets of critics have suggested that the ISC could more profitably spend its time by ending direct appeal in workmen's compensation cases, which it has recently done. In addition some critics have also suggested that the ISC cut back its direct participation in attorney disciplinary matters. Whether an externally oriented ISC would in any way be beneficial for Illinois cannot be answered in the abstract. It would depend on the results of any broader activity. The question is essentially a pragmatic rather than a philosophical one. History shows that externally oriented, activist courts are equally as likely to be conservative as liberal, and as prone to miscalculation and misjudgment as any other policy-making body. Stephen Daniels is a project director at the American Bar Foundation in Chicago. Ada Melton holds an M.A. in Legal Studies from Sangamon State University, Springfield, and works as a research assistant for the American Bar Foundation. Rebecca Wilkin also holds an M.A. in Legal Studies from SSU and is assistant to the director in SSU's Center for Legal Studies. 18/April 1984/Illinois Issues
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