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Justice Simon says. . .

Seymour Simon of Chicago, the Illinois Supreme Court's newest justice, has been labeled a liberal independent who writes a surprising number of dissents. In this interview conducted in September, Simon talks freely of his feelings about the judicial system, the Supreme Court, several controversial decisions and his own independence. He also comments extensively on the state's death penalty, of which he is an outspoken critic. He declined to discuss issues pending before the court, such as cameras in the courtroom and the Supreme Court's dispute with the auditor general over oversight of court commissions

SEYMOUR Simon says being one of seven justices on the state's highest tribunal suits his independent lifestyle just fine. "I've never been comfortable with bigness. I've always liked small things where you didn't have to account to a lot of people for what you were thinking, what you wanted to do," he said.


Simon said he is accountable to his colleagues on the bench, to his own ideas and to the law. Since he is locked into a 10-year term that will expire after he reaches mandatory retirement age, Simon said he does not worry so much about voters. "However I want to decide whatever I want to say in a case, I'm free to do," said Simon, who at age 67 is among the oldest of current high court justices.

He hasn't always had it so good.

As president of the Cook County Board of Commissioners from 1962 to 1966 and as alderman of Chicago's 40th Ward from 1955 to 1961 and from 1967 to 1974, Simon often found his independence cost him backing from the Democratic machine. He fell from grace with the late Mayor Richard J. Daley in a zoning change dispute with Alderman Thomas Keane. Daley refused to slate Simon in 1966 so Simon ran for alderman instead. "I didn't mind too much because I found being president of the County Board a little dull," he said.

Simon kept up his private law practice until he ran for appellate judge in 1974. He served on that bench until 1980, when he challenged five other candidates in the primary for a Supreme Court seat. Although the Democratic party's endorsement had gone to another man, Simon won the primary by 71,000 votes. He won the general election by 435,000 votes.

Simon said becoming a Supreme Court justice was not a lifetime dream but he believes his background prepared him nonetheless. A Chicago native, he enjoyed a sterling academic career at Northwestern University and its law school. He earned Phi Beta Kappa honors as an undergraduate and led his law school class in scholarship. His first post-school job was with the antitrust division of the U.S. Department of Justice. He served in the Navy in the Pacific from 1942 to 1945 before returning to Chicago to open his own law firm in 1946, handling many antitrust cases. He was married in 1954.

Simon toyed with the idea of running for Supreme Court in 1974 but opted for the appeals bench. Long interested in statewide office, Simon said the timing never was right for him to run.

He said he has no aspirations to try for the U.S. Supreme Court or anything else, save writing a book perhaps. "I'm not good enough to be on the United States Supreme Court, at least I don't think so. Also my age

January 1983 | Illinois Issues | 11

Sampler of Simon's opinions

On the death penalty (from The People of the State of Illinois v. Cornelius Lewis. No. 5338. November 1981):

It would be blatant folly for this court to acquiesce in the execution of Cornelius Lewis without disclosing that four of the judges comprising the present court, either now or in the past two years, have viewed the death penalty statute as unconstitutional. How much confidence can any member of the judiciary, any state official or any member of the General Assembly have that this statute will continue to be viewed as constitutional?. . .

The stakes are too high in a capital case to affirm a sentence merely for the sake of decisional stability when a newly seated judge of the highest reviewing court disagrees with some of his colleagues. . . .

If the three judges who dissented [previously] were joining me now, a new majority would be formed and the Illinois death penalty would be held unconstitutional. This clearly visible paradox cannot be camouflaged by the often quoted academic assertion that this is a government of law and not of men. Upholding the death penalty statute, with the standardless and unguided discretion granted to the 102 prosecutors who each hold the death penalty in their hands, is what makes for a government of men instead of law.

On defense attorneys (from The People of the State of Illinois v. Dennis Williams. No. 51870. September 1981):

The majority's application of a stringent incompetence test to a claim of inadequate time to prepare in effect allows the authorities to chip away, almost at will, at defense counsel's ability to do his job, so long as counsel is not completely crushed. . . . If the court can safely reduce every attorney to the level of a novice, we may as well take the novice; he's cheaper.

On mandatory waiting periods for abortions (from The Village of Oak Lawn v. Stewart Marcowitz. No. 53765. June 1981):

It is too much like a straightforward attempt to discourage abortion; it cuts too far into the basic constitutional decision that abortion is permissible. Could a state require a waiting period before one exercises other fundamental rights the morality of which some might question, such as publishing a scurrilous newspaper, buying contraceptives, or attending a lewd movie? Obviously not, and I therefore do not see how the waiting period for abortion can be constitutionally justified by the importance or nature of the decision.

On juvenile truancy (from In re G.B., a minor. No. 54098. December 1981):

I regard it as an abuse of discretion to imprison a minor for 60 days for playing hooky. . . .There are some things the law cannot realistically be relied upon to accomplish. Forcing a 16-year-old apparently incurable truant to attend school regularly and sit still long enough to learn something is one of them.□

would prevent it." Simon knows he could be retired and enjoying a life of leisure instead of spending long hours poring through legal documents but he said lying on a Florida beach is not his style. "If I were retired, I'd miss this experience," he said. "After all, not everyone can be on the Supreme Court of Illinois. I was elected when I was 65 years old. To be starting a new job, a new career at that age was exciting."

Perhaps because of his past scrapes with party heavyweights, Simon said he feels no undue political connections. "I don't participate in politics in any way. I don't mind saying that I likely will vote for Democratic candidates for the rest of my life."

For all his love of politics, Simon is a strong supporter of merit selection for judges. "It really isn't the public that is selecting the judge [now]," he said. "I think that for a long time judges have been selected by the dominant political apparatus and many people get selected because of political service. Many are good, excellent. But I believe we would have a wider choice of excellence and more people seeking appointment to the bench if we had merit selection." He said judges so selected would be less obligated to special financial interests.

Simon said more in interviews for Illinois Issues in September; below are his views which add some new perspectives of the court system.

Q: What do you think of the judicial system generally? Is it good in Illinois? Do you think that judges are overworked and therefore can't give as much attention to cases as they should? Do you think that it is bad?

SIMON: The criminal justice system is such a complicated thing. It involves so many people, so many issues, so many personalities, so many problems and complexities, it is always a wonder to me that it works. I think it works very well. I think that defendants really are given careful attention to make sure that their rights are not withheld.

At the same time, I think generally the public is vindicated by having those who are guilty punished and given sentences which are commensurate with their crimes. In some instances, contrary to public opinion, I think the sentences that are given are pretty stiff.

I think judges are overworked. Certainly the Supreme Court judges are overworked but I don't know that there is any way of resolving that problem. There's a limit to what the public can afford to spend for the judicial system. Adding more judges would be tremendously costly because with every judge goes a retinue of a prosecutor, public defenders, clerks, more appeals. I think judges just have to be expected to work hard.

I think judges, after they've had experience, get used to cutting into issues rather quickly and making up their minds. The fact that a judge might not contemplate an issue as long as he might like to have the luxury of doing doesn't mean his decision is incorrect or unfair.

Q: A recent study by researchers at Sangamon State University found that a staggering majority of Illinois trial judges are white, male and generally of moderate to conservative ideology. How can that kind of a judiciary represent the entire population and make decisions sensitive to the other economic and social levels that come before it?

SIMON: I don't think I'm part of that group, although I fit by age and by color into it.

You would be surprised at how much care and attention and sensitivity I see people get in criminal cases. As a matter of fact, the public criticizes the judiciary for that, for being too concerned about making sure that people's rights aren't stepped upon.

We have a public defender system that is magnificent. We get very bright people in that system. They raise issues in these criminal cases that you wonder how they dreamt them up. They're provoking issues. They're issues that we deal with.

Every person who is convicted of a criminal offense is guaranteed a review by the Appellate Court of Illinois. They then can appeal to us and we read their petitions for leave to appeal. I know how carefully we debate the criminal cases we have.

Q: But isn't it difficult to see that side of society that you've never seen?

SIMON: But it is not difficult for a lawyer or a judge to see what is fair, what is just, to see that people have rights. And when intentionally or unintentionally those rights have been trampled on or they've been deprived of them, to have the courage to say, "Hey, there's an error here. Let's do something about it."

You don't want a Supreme Court made up of ex-criminals.

January 1983 | Illinois Issues | 12

Q: What do you see as the proper function and role of the Supreme Court in Illinois? Do you feel the court is, or should be, the pulse of society? Should the court, or does it, lead or follow on social issues?

SIMON: I'd say it's very difficult to generalize. I think the court should hear cases that are novel, that raise issues that affect the public and are of interest to the public generally. It should also hear cases where lower courts are in disagreement with each other. Of course, it should also hear cases where we think that something's gone wrong in the lower court and someone has been treated unfairly or unjustly.

But when the case actually comes up for consideration, I think that each judge must respond and decide in a way that he thinks is just, that's fair and that conforms, so far as possible, to legal precedent. I don't think the court should follow public opinion. I don't think the court should be ahead of public opinion. I think it should decide each case in a way that the seven judges who were elected by the people of this state to sit on that bench think is fair and just.

Q: So you don't see the court, in the greater scheme of society in Illinois, out front, changing, shaping public opinion?

SIMON: Well, I suppose it does shape public opinion in a sense because we do decide things that are new and make new laws. Maybe the public disagrees with a lot of the decisions we reach, I don't know. But I think the function of the court is not to lead public opinion, not to shape public opinion or shape society but to do justice, to do fairness and to be righteous in every case we decide so far as we're able to do it.

Q: You say the court must look at each case individually. What about cases like the Senate presidency fight and the cutback amendment on the ballot? Some people have criticized the Supreme Court as stepping into other branches of government and interfering with them. Do you think those decisions were based entirely on what was fair and what was just, according to the law, or do you think there were other interests at work?

'[The court] should decide
each case in a way that the
seven judges who were
elected by the people of this
state to sit on that bench
think is fair and just'

SIMON: I think on the Senate president fight the court acted in part out of a sense of expediency because here was a conflict and the legislature couldn't resolve it without someone calling the balls and strikes on it, without being the umpire. The only one in the situation that could be the umpire was the Supreme Court and that is why I was satisfied to have the Supreme Court participate in the resolution. They [the governor and the legislature] weren't resolving it. They were involved in utter chaos there and the chaos would have gone on, at least it appeared at the time. Maybe they would have kissed and made up and come to some amicable settlement, but at the time it appeared that the fighting would go on for weeks and months. Matter of fact, it came to physical combat there, in the Senate.

On the cutback amendment, which was before I got on the court, it was presented to the court and I think the court had to decide whether under the law and under the constitution, the public in the state of Illinois had the right to a referendum. And who else was going to decide it? Unless the court stepped in and made a decision the decision would be no referendum.

Q: Would you, as a Supreme Court justice, rather not have to deal with those kinds of issues, particularly when they involve the other branches of government?

SIMON: You have no choice. You can't say what you prefer. When balls come to you, you've got to catch them. Either you catch them or you drop them. It's better to catch them than to drop them.

I'm amazed at the number of instances that come before the court where different branches of government get into scraps with each other. Everyone appears to get hard-nosed. I think a lot of these could be solved if people would step back, take a deep breath, calm down and get a little more objective.

Sometimes, you need an umpire, though, a ball and strike caller. That's the function I feel that we serve. Sometimes they need a legal decision. You know, people scoff at lawyers all the time, but in these cases they serve a good function. They get controversy resolved by bringing it to the court.

Q: Do you feel Illinois citizens lack an understanding of what the highest court is all about and if so, is it important for them?

SIMON: I think most people don't understand what the highest court is all about or what the judges do or how they go about it or when they meet, how they reach a decision. But government is so complicated, there are so many other parts of government that are so important for people to know about, that I don't feel hurt. It's probably more important for people to know about the circuit court and what happens there because more people come in contact with it.

Q: You have, in some of your opinions like the death penalty case of Cornelius Lewis, who robbed a Decatur bank and shot a guard, taken some of the other justices to task. You apparently felt very strongly that the court's decision in that case did not reflect the majority's true feelings.

SIMON: I wasn't critical of them. I was stating a fact that they had previously stated the position that the death statute was unconstitutional. In that opinion, each of them wrote that they still believed it was unconstitutional. So what I said was that I couldn't understand if three judges believed it was unconstitutional and I did, why we didn't have a new majority of four that declared the law unconstitutional. Then I referred to precedents where when new members came on the court, there had been an overruling of previous decisions. I said I thought we ought to do that there.

Q: Did you feel awkward about doing that, since you were the newest justice?

SIMON: You don't like to be disagreeable or to disagree. I think it would be nice if the seven justices always saw alike and if we always agreed, if we were one unanimous happy little group. But that's not the way of the law, that's not the way of being a Supreme Court judge. And if we were that way, we wouldn't be a good court.

Q: You didn't get anybody saying, 'Boy, Seymour, you really struck a blow against us there and we didn't appreciate that'?

January 1983 | Illinois Issues | 13

SIMON: No. Once in a while we kid around with each other but I regard it as kidding. No one reprimanded me for taking that position. With the caliber of men that we have on the court who are sensitive and reasonable and mature men who understand what the role of the Supreme Court is and what their own role in it is, they wouldn't.

We have wonderful men on that court who are experienced, learned, hard-working and diligent. You never know where they are going to end up in a case.

'You have to have a
willingness to do sometimes
what hasn't been done, in the
interest of fairness and justice'

Q: Have you written more dissents than other justices? If so, does that make you feel like maybe they're right and you're wrong?

SIMON: I don't know. I've written a lot of dissents, perhaps more than other justices since I've been on the court.

I always examine myself. I don't say that I'm always right. I may be wrong in my opinion and the majority may be right. I feel it is my responsibility and my obligation, within the limits of my physical and mental capacity, to explain myself when I disagree with the majority. I can't always do it because there aren't enough hours in the day but I pick the cases where I think my disagreement is the strongest, where the issue is most important to disagree on.

Sometimes dissents later get to be the law.

Q: Is your work fun, interesting and challenging? Describe what it is like to be a Supreme Court justice.

SIMON: It's very hard and there's a lot of it [work]. The quantity is unbelievable. The amount of reading is tremendous. And there is a lot of pressure on you to keep pushing to get the work out. If you don't push, if you let down and fall behind, you're dead.

Q: Does that pushing come from the other justices?

SIMON: No. It comes from yourself. No judge pressures any other judge about keeping up. But they do in a way because when I got on the court, I saw all these judges got their work done on time. They got their opinions written very quickly. They were up to date on the administrative work of the court. Well, when you get into a league like that, you know yourself you've got to produce or you won't be worthy of your colleagues.

Q: What are the biggest drawbacks to being on the Supreme Court?

SIMON: The job would be great if it involved 52 weeks a year in Chicago. This traipsing down to Springfield 16 weeks a year gets a little wearing. The other drawback is the volume of work but that also is a challenge. I would like to be able to concentrate more on fewer things but that is not the nature of the court.

Q: How can the court get away from that? Should it get away from workers' compensation cases that are appealed directly?

SIMON: We spend a lot of time hearing workers' compensation cases and lawyers' disciplinary matters but it is difficult to get away from that. We could rely more on the disciplinary review commission. As for workers' compensation, I kind of like some of them. Maybe that's because I'm new on the court and I never had anything to do with workers' compensation before I got here.

We have a lot of criminal cases but that's also the nature of Supreme Court work. Those who are convicted of crimes have no other place to go but here so we've got to take them.

Q: What qualities are needed and important to be a Supreme Court judge?

SIMON: First, you need some rapport with the electorate so you can be elected. Apart from that, I think you need courage, independence, the ability to concentrate on a lot of written material, a lot of energy, the capacity for hard work and long hours and a pretty good understanding of the law and legal theories and how to deal with concepts. After all, that's [what] the business of judging is a lot of — understanding concepts and ideas.

You have to be patient. You can't be arrogant. You can't be too quick in making up your mind. You've got to have the capacity to be soul-searching of your own soul. You have to have a willingness to do sometimes what hasn't been done, in the interest of fairness and justice.

Q: You have an incredible power especially when you put all of you together. You have power over people's lives, literally life and death sometimes. Isn't that awfully overwhelming and frightening?

SIMON: Yes, it is, particularly in these death cases. It is why I think another characteristic a judge needs is to be cautious. You should be cautious in the exercise of that power.

Q: Does it frighten you so much sometimes that you can't think about it?

SIMON: No. I don't think about it too much. You get immersed in these cases, trying to get an opinion out or trying to figure out how it's going to be decided, critiquing the opinions of the other judges, that you don't have time to sit around and say "Gee, I've got all this power. What am I going to do with it?"

Q: If you would see a story about conditions on death row or a story about one of the inmates for whom the court has set an execution date, would you go out of your way not to read it?

SIMON: No, but I'd probably feel sad about it, melancholy about it, whether I was the judge who participated in the decision or not. It's a human being who has visited with tragedy and difficulty. Even if I wasn't on the court that decided it, I'd probably feel bad.

Q: What do you think is special about you? Why do you think you should be entrusted with the sort of responsiblity that comes with being a Supreme Court justice?

SIMON: I'm sure that there are hundreds of other lawyers, probably thousands of other lawyers in this state, who could carry out this responsibility as well as I do. Very many on them, I'm sure, better than I do. But I was the one who was willing to get up on the firing line and run for the office. The people by electing me entrusted me with this responsiblity. I hope they didn't make too much of a mistake. □

Mary Bohlen reported on Illinois government and politics for five years as a Statehouse reporter for United Press International. She currently works as a press secretary for Illinois Senate Democrats.

January 1983 | Illinois Issues | 14

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