This is the second part of our interview with Professor Howard Brill of the University of Arkansas School of Law. As mentioned in yesterday’s post, Governor Asa Hutchinson appointed Brill to be the Chief Justice of the Supreme Court of Arkansas in 2016. Dan Greenberg interviewed Bill in 2017. Because of the length of that interview, we are breaking it up into various pieces for TAP. Yesterday’s post discussed Brill’s background, how his experience as a law professor informed his work as a Chief Justice, and the intellectual atmosphere of the Supreme Court. This post continues the conversation with Brill’s impression of how the Arkansas court system works:
GREENBERG: So, in 2017, after being the Chief Administrator for 16 months in the Courts, what do you see as your largest concerns, or the greatest defects, or the most significant reforms needed of the state’s Courts at this point?
BRILL: I would point out two successes. Number one, over 15 or 16 years, Arkansas has successfully, almost completely redone our District Courts so that we have full-time District Court judges. That is a major step forward in the administration of justice, and I’m very pleased that happened. And second, I was and am impressed by the quality and the ethical standards of the trial court judges in Arkansas. I had not worked with them extensively, I have a much better feeling for them now, and I’m impressed with the quality and the ethical standards.
On the other hand, if you ask me, what are my concerns looking to the future, or what I think may be the problems or the defects, I’d point out two things.
Number one, I believe it is very important that the authority of the Chief Justice of the Arkansas Supreme Court be protected and retained. It is important to have a Chief Justice who has the authority and the backing of the Court to speak for the Court, to be the leader for the Court, to manage the Court, to be in charge of the administrative structure. That’s what the Constitution intends, that’s what the statutes call for, and therefore I believe the power of the Chief Justice should be protected.
And second, more broadly, I think it is important to preserve the independence of the judicial branch. And some of the things, such as the amendment, the proposed amendment that we may talk about later, I think, question or call into question the independence, and so that troubles me, also.
So, those are the two concerns I have going forward, I think, the power of the Chief Justice, the authority, and the independence of the Courts.
GREENBERG: Well, I think I probably do want to get into that with you, but I’m going to postpone that for a few minutes, if that’s okay.
GREENBERG: Okay. So, I’m curious to know if you have any general thoughts on what I call, kind of, the mystification about the Courts, and I’ll just put it this way. It’s sort of the norm that, in Arkansas, you can call a state legislator and ask him his views on pending issues, ask him to explain his or her views, and it’s obviously, it’s not the norm that I could call you up while you were sitting on the Court, or some other people who were on the Court. And so, that leads to a number of things, but one of the norms is that, I think, judges aren’t supposed to discuss some things, even though, under the canon of judicial ethics, they’re actually allowed to go into great detail about their judicial philosophy and so forth.
So, say a little bit about whether the Courts should be treated as something different than just another branch of government, and something about the gray zone involving the canon of judicial ethics. Do you have any thoughts on this, generally?
BRILL: The Courts should be treated somewhat differently than the other two branches of government. I think that’s because of the fact that they are to be independent and to make decisions based upon the law, not upon public opinion, not upon newspaper columns, but upon their reading of the law. So, I do think that they should be treated separately.
On the other hand, I do believe there is some misunderstanding about the Courts and how they operate. I, certainly, did not fully appreciate the operation of the Courts until I was within the Courts. For instance, I had knowledge of the rules of Court procedures, but until I was there, actually involved with the Clerk’s Office on a daily basis, I didn’t know how those rules truly operate, and most lawyers don’t until they either have worked at the Court or have handled a significant number of appellate cases.
So, there is a mystery. Should some of that be removed? Yes. And judges and judicial candidates are certainly free to talk about a number of topics, and to make presentations, and to write articles, and take stands on things that are not likely to come before a Court. They’re free to do that, but it is easier, sometimes, for judges simply to say, “Well, I don’t want to get involved in that public issue, or that public matter.”
The courts should be treated somewhat differently, but there should be more efforts to remove the cloud, and for the public to become more aware, and for the legal profession more aware of what is happening.
GREENBERG: Fair enough. So, I want to ask you to expand on that, on some of the things that you said, just a little bit, because I appreciate that judges are to and must follow the law. I think it’s also fair to say that some things that come before the Court, there’s a fair amount of discretion as to what decisions a judge might make. I mean, I assume that you felt that you had some degree of discretion, sometimes, when you were writing opinions and casting votes, when you were explaining, not to put too fine a point on this, what the law is. Correct?
BRILL: Well, I certainly had discretion when I’m in conference, discussing things and explaining things. When it came to writing opinions, if I was in the majority, I had much less discretion because I had to have the votes of at least four other people to keep the majority together. I found that if I was writing a dissent, I had much more flexibility because I’m just writing for myself, basically. So, you will see in some of my dissents that I have, perhaps, a different tone or a different style than I did when I wrote for the Court as a whole. And, in part, that’s because of my reading of the law, and in part, it’s just because of my writing style.
GREENBERG: So, you might say, when you’re writing dissents, there’s a sense in which you’re less constrained?
BRILL: Yes, and I’m going to give you a simple example of that, and I’ve used this several times.
I drafted an opinion for the Court, as a whole, on a pretty straightforward case, and my opinion started out with a quotation from Yogi Berra – “It ain’t over ‘til it’s over.” I thought Yogi’s quote fit in there. I thought it was perfect. I thought it explained the point that I was going to make when I developed the whole argument.
However, some members of the court had the feeling that a majority opinion should not start with a quote from a baseball player, it was just not appropriate. So that opinion ended up being written by someone else, and I joined the majority opinion, and Yogi never showed up. That was an instance in which I learned, if I’m writing for the Court as a whole, my writing must be more traditional or standard.
GREENBERG: Fair enough. So, I want to ask you just a little bit about your judicial philosophy. I mean, I think that we could construe some great justices as being constrained by their own judicial philosophy. I mean, I think if we were to somehow get Justice Scalia on the phone, he might say something about the great weight he gives to original public meaning, or something like that.
GREENBERG: Do you think of yourself as being constrained by any sort of particular judicial philosophy?
BRILL: No, I do not have a judicial philosophy that I feel controls me. When the Governor announced me as the Chief Justice, there was a press conference there in his conference room, and one of the first questions that I had from a reporter was, what was my philosophy. And I simply said, “My philosophy is to apply the Arkansas Supreme Court, and the U.S. Supreme Court, and the statutes of Arkansas, and the case law of Arkansas to the fact patterns that come before us.” And that was it. And I know that was very general and very bland, but beyond that, I did not have any particular judicial philosophy, and I don’t think I have one now, either.
GREENBERG: So, when you were in conference with the other six justices, did you think of them, generally, as sort of following that theory? Did you think of them, generally, as having that same view about their own judicial philosophy, or did you sort of notice hints that some of them seemed to be constrained about something a little bit more narrowing, that we might think of as a more sort of determining judicial philosophy? I hope I expressed that question appropriately.
BRILL: I don’t have any feeling about what motivated the six of them, generally or on specific matters, but I’ll give you an example.
On isolated matters, certainly, different justices have different approaches. We had a number of cases last year involving arbitration clauses. There are some members of the Court who have a very critical view of arbitration clauses and believe that such clauses are taking away the rights of people to go in front of a jury. And that shows up in their opinions, and I suppose that’s their philosophy. And others might more willingly, easily uphold arbitration clauses.
Now, I don’t know if that reflects a judicial philosophy or just a way in which they’ve examined a whole series of cases, but I don’t know if any of the six, in their own mind, would say they had a particular strong judicial philosophy. You would have to ask them, but it wasn’t apparent to me.
GREENBERG: So, I want to follow up just a little bit, before we get on to the rest of the questions, with something I thought that was interesting that you said before. A few moments ago, you said something to the effect of, “I just want to apply the law to the facts.” You were a little bit more detailed than that, but that, I think, is in the ballpark of what you were getting at.
GREENBERG: Right. So, you know, I always wonder about statements like this because there’s a puzzling aspect to it. And I hope you’ll forgive me for what may seem to be something of a naive question, but to state the obvious, when cases go to the Supreme Court, they’re typically not easy cases. They’re sort of on the hard-case end of the spectrum and there’s a fair amount of disagreement. Obviously, when cases go to the Supreme Court, it’s fairly routine that there’s a majority opinion and a dissent.
So, what do you think is going on there, because presumably, all the judges want to apply the law to the facts. So, how would you describe what’s actually happening, because there’s some kind of a disagreement, right, about what that constitutes, when the law’s being applied to the facts, because there’s disagreement.
BRILL: I think when judges look at a particular case, they may read the facts differently. Particularly in a criminal case, some facts may be more significant than other facts. One judge may pull out an isolated fact and build an opinion upon that, whereas others will say, “Well, we have to look at the facts as a whole.” So, particularly with criminal cases, some facts become more important than others, and some judges will focus upon different facts.
In regard to the law, the language, sometimes, the language can be read differently. I remember a case we had last year, interpreting the language in an insurance policy, and what that precise phrase, five or seven words in an insurance policy, meant. I think we reached a four/three decision because we disagreed on how to read those precise words in the policy. So, I think, for both the facts and the law, justices read the facts and the law and the language differently, and come to different conclusions.
GREENBERG: Well, fair enough. I want to ask you about two labels you might apply to this phenomenon that you’re talking about. One of those labels is ‘discretion’, that judges have discretion, and another one of those labels is ‘ambiguity’, that things are just perceived differently by different people. Do you think the phenomenon you’re talking about is better described by ‘discretion’, or better described by ‘ambiguity’? If you think that’s a fair question.
BRILL: I think that’s a fair question.
In regard to reading the law, or reading a statute, or reading an insurance policy, I think it’s because there is frequently ambiguity in the language, and the Court is being asked to interpret that ambiguity in light of what the legislature might have intended or the parties might have intended. I think that when it comes to looking at the language, I would not describe it as discretion. I would describe it as a judge using his or her best legal judgment as to which facts are important and controlling.
On the other hand, sometimes judges certainly have discretion. For instance, a trial judge has significant discretion in deciding whether to grant a new trial. Likewise, a statute permits the award of attorney fees in breach of contract cases, but both trial court and appellate courts.
I would say that there may be ambiguity as to the law, or the language, but a judge does not have discretion in interpreting that language. The issue is what did the legislature or the parties intend. I would not use the word ‘discretion’ in those situations.
GREENBERG: Did you have any literary or stylistic role models when you think of other opinion writers? I mean, are there or were there any opinion writers on the Supreme Court or even the State Supreme Court that you admired and tried to sort of measure yourself against?
BRILL: No. I mean, I read opinions and I make a note to myself of, “Boy, I enjoyed this. This is a good opinion. I like it. I like the way this is written. It’s clear. It lays out the law. It flows.” But, I never connected that with particular justices or judges on a regular basis. So, no, no one stood out to me as a role model.
GREENBERG: Okay. And am I allowed to ask you, when you think back on the opinions that you’ve written, is there one, or maybe more than one, that stands out in your mind, that you say, “Gosh, that’s really pretty good work on that opinion. I’m especially pleased with this one.”? Am I allowed to ask you that?
BRILL: Sure, you can ask me that. You know, I hesitate to answer it. It sounds like taking pride in my opinions, and I don’t want to do that, at all.
GREENBERG: I just mean to ask you, is there one that kind of meets your standards of sort of laying things out clearly and doing a good job of flowing, according to the standards that you expressed? I’m just curious about that.
BRILL: Let me think on that. There are a couple that I probably would say I was particularly pleased with the way these came out. So, I’m going to make a note, and I’ll think of one or two.
GREENBERG: Sure. Well, I’m entirely not interested in putting you on the spot, so yeah, if you could get back to me later, that would be great.
BRILL: Sure. [Brill later supplied several opinions that he thought best reflected his preferred style: Gill, 2015 Ark. 421 (negligent homicide); Walther, 2016 Ark. 209 (tax exemption); Stokes, 2016 Ark. 182 (father-son dispute over land); Landers, 2016 Ark. 272, dissenting (judicial retirement).]
Tomorrow, this interview series will continue with a discussion of the Arkansas Bar Association, electing vs. appointing judges, and whether being an extrovert can make a judge’s job easier.