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Judges: Guard 'your honor'

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Thomas G. Moukawsher

Thomas G. Moukawsher.

I’m a judge, and I admit it: I like being called “your honor.” Call me entitled if you want, but I disagree with the Kentucky federal judge who made headlines last fall for saying that modesty forbids him from accepting this distinction.

U.S. District Judge Benjamin Beaton claimed in a May 2022 speech, which was later published in the Harvard Journal of Law & Public Policy, that he rejects “your honor” because it smacks of the titles of nobility our constitution forbids.

Yet it’s likely that Judge Beaton isn’t really worried about whether “your honor” is a title of nobility. He’s just using the nobility clause to illustrate a point that what judges do doesn’t deserve such deference. Judge Beaton and other originalists argue that judges only “discover” law and put no part of themselves into the process.

I take a different view. Laws, including constitutions, are living things because whether we admit it or not, judges’ views about what to recognize as law can’t help but shape it. For me, even the words we use to describe the process remind me that we aren’t merely digging up ready-made answers. On the bench, we use “judgment.” We write “opinions.” That’s my job every day, in cases great and small. That’s because American statutes and our Constitution are full of undefined words such as “due process,” “liberty,” “equal protection,” “cruel and unusual punishment,” “reasonableness,” “recklessness,” “unfairness” and “willfulness.”

Defining generalities like these is part of any judge’s daily job. After 20 years litigating in federal courts and 10 years on the state court bench, I have found legal words that need judicial definition in almost every case. For example, I have had to define the “reasonable notice” the law requires us to give tenants, witnesses, the subjects of searches and contractors being sued for late performance.

Is “reasonable notice” a fixed number of days regardless of the circumstances? Is it tied to the amount of time needed for action under the totality of the circumstances? I have been surprised over the years to find only general guidance when researching statutes and precedent on questions like this.

For example, in most states, we judges have ruled that if people don’t use “reasonable care” as drivers, doctors, lawyers and in other roles that affect us, they might have to pay someone injured by this negligence.

I know that granting a person in trouble with the government “due process” under the Constitution often means giving them a reasonable hearing at a reasonable time. But the Constitution doesn’t say that; judges have decided what due process means and how to determine whether it has been afforded. Likewise, when I had to decide what my state’s constitution meant by guaranteeing free public education, I found some courts held that its meaning was up to the legislature and some held it was up to the courts. There was no “right” answer to discover.

And remember, some law in most states is not written in any statute or expressly addressed in any constitution. This is particularly true in tort law. For example, in most states, we judges, have ruled that if people don’t use “reasonable care” as drivers, doctors, lawyers and in other roles that affect us, they might have to pay someone injured by this negligence. Liability for negligence comes from the “common law”—“judge-made law,” and judge-made law is fundamental to our identity as inheritors of the English common law.

It’s the American way. In 1803, Chief Justice John Marshall, speaking for a unanimous U.S. Supreme Court in Marbury v. Madison, firmly embedded judging law as the job of judges when he wrote, “It is emphatically the province and duty of the judicial department to say what the law is.” Sometimes in our country, what judges write is law because it has been the historic function of common law courts to impose legal duties on citizens in some circumstances even when no statute or constitution addresses the subject at issue. We should hail this work as fundamental to our system of checks and balances, not disown it.

I don’t think Judge Beaton prefers some other system to our own. His job—and that of all judges—aims at honorable and, yes, fallible human judgments about what the law is.

But perhaps it’s easier to adopt a view of the law when we can say it’s rooted in the judgment of others. Judge Beaton says he doesn’t decide what is law, he just seeks it. As he put it, he seeks a source that “compels” a conclusion. He looks for a law’s “original” meaning. When a statute is clear or there is binding precedent, that’s easy. But far more often than Judge Beaton admits, the answers aren’t obvious. What do judges do then?

They choose their sources. Will they follow Justice Sonia Sotomayor or Justice Clarence Thomas? Or statements from the Congressional Record? They may all point in different directions, so judges choose a point of view when they choose a source. In such instances, they aren’t “compelled” to do it. They just find only one of them compelling. This choice reflects judges’ opinions, just as it would were they to prefer guidance from the Sermon on the Mount over the Book of Leviticus.

Equally, judges choosing original meaning reflects their judgment. Considering a law in force today only in light of past realities is a willful choice of the values of the past over the values of the present. There is nothing inherently wrong with choosing past values, but those who choose them should admit it and justify their choices. The Supreme Court rejected past values when it overturned school segregation in Brown v. Board of Education, and nobody today suggests it was powerless to do so. It was a choice. By judges.

To admit my choices, I sharply distinguish in my opinions what I must do from what I may do, and then justify my decision. I think that’s more convincing than pointing to obscure records of the past or tangled references to contested sources and saying, That’s just the law talking, not me.”

I think judges foster more respect for the law by acknowledging their real responsibilities, their humanity, their fallibility and their struggle to administer justice. Giving up “your honor” is no substitute. In an age of bandit billionaires in T-shirts, superficial informality is no confidence builder.

We address judges as “your honor” because we know they have real power. We appeal to their honor, not their egos, when we do it. Judge Beaton says this is merely aspirational—not guaranteed to work. But “your honor” isn’t merely aspirational; it’s gloriously aspirational.

I’m proud to hear those words because they remind me that the public expects us to aim to our utmost ability to wield what power we have nobly and wisely. We rightly remind judges of their burdens, our expectations, and indeed, our demands when we greet them with, “Good morning, your honor.”

Thomas G. Moukawsher is a Connecticut complex litigation judge. He is a former co-chair of the ABA Committee on Employee Benefits. He is the author of the forthcoming book from Brandeis University Press The Common Flaw, Needless Complexity in the Courts and 50 Ways to Reduce It. is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

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