CORDY_FORUM 4/11/2019 1:58 PM

Mechanisms of Accountability
Fundamental to an Independent
Judiciary

ROBERT J. CORDY

This essay is based upon remarks delivered at a meeting of the International

Judicial Workshop in Macedonia, on November 2, 2017, to an audience that
included judges from Macedonia.

I was a trial lawyer for 27 years before I was appointed to be a judge on

the Supreme Judicial Court of Massachusetts, where I served for 16 years
before returning to the practice of law. During those 16 years and up to the
present, I have had the great privilege of working with judges from around
the world who have shared a passion for improving their judicial systems
to further the economic and social welfare of their citizens and their
countries. One question I am always asked is to explain the American
court system, and I always say, as I must, that there are actually 51 court
systems in the United States – the federal system and 50 state systems –
and 51 constitutions under which they operate. I am familiar with two of
them but the principles I discuss here apply equally to them all.
A wise American Supreme Court Justice in the 1960s wrote that, “the
only real source of power we as judges can rely on is the respect of the
people.”1 In other words, an independent, effective and courageous
judiciary is sustained not just by the written words of its constitution but
by earning the trust of its citizens. But establishing public trust and respect
can be difficult at times, especially where one-half of the litigants that come
before the courts are inevitably disappointed in the outcome of their cases
and where judges often will be asked to decide controversial matters
involving the rights and liberties of persons, groups, and causes that may
be disfavored by the government or unpopular with a majority of citizens.

 Partner, McDermott, Will & Emery; Associate Justice of the Massachusetts Supreme Judicial
Court (retired).
1 Thurgood Marshall, The Sword and the Robe (1981), available at https://perma.cc/49SR-

A599.

101
CORDY_FORUM 4/11/2019 1:58 PM

102 New England Law Review Vol. 52

But it is vital that judiciaries in constitutional democracies be

independent—that is, judges must be free to decide cases based on the law
and the facts, without interference or fear of reprisals from the other
branches of government, and without outside influences requiring that
they favor one party over the other. Judges must, of course be accountable,
but judicial accountability is very different than political accountability.
Judicial accountability is faithfulness to the principles of fairness,
impartiality, and equal treatment under the law. It is accountability to civil
society’s most laudable pursuit: the work of justice. Judicial accountability
knows no partisanship. It brokers no compromise and trades no favors.
How a system strengthens judicial independence with mechanisms of
judicial accountability is vital to garnering the respect and trust of the
public essential to the judiciary’s mission.
In preparing to attend this important conference, I have noted that
some international observers of the Macedonian judiciary have commented
that judges here are often held in low regard by the public and litigants. It
is important to change this view and it can be changed. Changes in the law
and the use of the mechanisms I discuss here can help, but in the end it is
the conduct of judges over time – through their every day work at
affording a consistent, fair and impartial forum for all of their citizen
constituents – that will make the difference. That and some transparent
efforts at promoting what judges do and why it is important.
I have come to believe that there are at least four mechanisms that
must be part of any plan to increase judicial accountability, ensure public
trust and confidence in the judiciary, and thereby strengthen judicial
independence.
First, a mechanism to ensure that judges act accountably only to the
law and that the law is consistently and uniformly applied. Most
importantly, this includes an effective, timely, and efficient appeals
process. It is not unusual for different trial court judges in the United
States to decide similar cases differently, either by interpreting or applying
the law at issue, as they understand it, to the particular facts somewhat
differently. But it is the role of an appeals process to smooth out those
differences by clarifying the law and making its application more
consistent and predictable—for the judges and for future parties.
Second, a meaningful code of judicial conduct, and a judicial culture
that embraces its values, including an effective mechanism to enforce the
code and fairly investigate citizen complaints of judicial misconduct.
Third, a meaningful judicial evaluation process that ensures a shared
understanding of what is expected of a judge and enables the detection of
weaknesses in the performance of individual judges that can be promptly
addressed and corrected. Such a process is not one designed to discipline
judges (and should be completely separate from the disciplinary process),
CORDY_FORUM 4/11/2019 1:58 PM

2019 Mechanisms of Accountability 103

but rather to educate and improve the quality of justice and its delivery as
dispensed by every judge in the system. In Massachusetts, for example,
there are a number of resources available to judges who need assistance,
including continuing legal education and training programs and a judicial
mentoring program.
Fourth, a commitment to the principle of transparency in court
processes, judicial decision-making, and judicial reasoning. This is a topic
worthy of elaboration. Historically in the United States, we have tried
mightily (if not always successfully) to ensure public access to court
proceedings and court records. This reflects a judgment made more than
200 years ago that comes from balancing the public’s interest in judicial
accountability against the privacy interests of litigants. The reason for our
striking the balance in favor of public access is perhaps best articulated by
Oliver Wendell Holmes, who explained in a judicial decision he wrote 123
years ago, when he was a Justice of the Massachusetts Supreme Judicial
Court, as follows:
[I]t is desirable that judicial proceedings should take place under
the public eye . . . because it is of the highest moment that those
who administer justice shall always act under the sense of public
responsibility, and that every citizen should be able to satisfy
himself with his own eyes as to the mode in which this public
duty is performed.2

This principle of transparency has assured public access to all but a few
types of court proceedings (generally excluding juvenile proceedings); and
a similar right to access most civil and criminal court filings and all judicial
decisions. The principle has been protected by a vigilant press, which often
acts as the eyes of the public, reporting on the diligence of judges, the
substance of their decisions, and on the efficiencies or inefficiencies of the
judicial process. A well-informed American press, while occasionally
critical of judicial decisions, has consistently played a vital role in
prompting significant improvements in court operations, and in enhancing
public understanding and respect for what courts do and their critical role
in a constitutional democracy. The press could and should be an ally in this
endeavor.
Transparency and accountability in court proceedings have been
further promoted through the use of technology in courtrooms. For
example, in every courtroom in Massachusetts all of the proceedings,
including the interactions between the judge, lawyers and the parties, as
well as the oral rulings of the judge, are fully and digitally recorded and
become an important part of the record of the case for appellate and
precedential purposes. I cannot overstate the value of recordings that

2 Cowley v. Pulsifer, 137 Mass. 392, 394 (1884) (Holmes, J.).

CORDY_FORUM 4/11/2019 1:58 PM

104 New England Law Review Vol. 52

capture what actually was said and occurred during the proceedings. With
the latest technology, lawyers can literally leave the courtroom and have a
copy of the digital record. The press as well can obtain such a record
promptly on request, as can the disciplinary authorities that govern the
professional conduct of judges and attorneys when their courtroom
conduct is questioned, and there can be little dispute about what has
occurred. The existence of these recordings has raised the quality and
civility of court proceedings generally, and has created an accessible means
of accountability throughout the system.
Indeed, the proceedings before the Massachusetts Supreme Judicial
Court are filmed and broadcast live in real time over the court’s website.
Parties, lawyers, law professors, the media and any interested citizen can
either come to the courthouse or watch the lawyers argue their cases, and
the judges asking questions, on their computer screens from wherever they
happen to be. In addition, weeks prior to the hearing, all the briefs filed by
the parties in the cases can be accessed electronically, also through the
court’s website, so interested observers can be well informed about the
important questions that the court will have to decide and the arguments
on both sides.
When I speak of transparency, I am not only speaking of transparency
in courtroom proceedings and filings, but also transparency in the
functioning of the court system itself. In the electronic age, we can gather
and analyze data regarding the satisfaction or dissatisfaction of court users
(not the results so much, but rather the ease of access and how they were
treated), as well as the pace of decision making, by type of case and by
courthouse. We can also create reasonable time standards for the handling
of different types of cases, and regularly measure our performance against
those standards. We should use these measures to improve the
performance of a court system, to advocate for more resources when
necessary, better training and support, and to keep our citizens better
informed about what we are trying to do to improve our service to them. It
is about creating mutual respect.
Finally, transparency also has an important role in promoting public
confidence in the judicial selection process. Although the process by which
judges are chosen in the United States varies from state to state, the
qualifications of judicial candidates are fully examined, and the qualities of
intelligence, integrity, diligence, temperament and professionalism are
highly prized. Once a lawyer has been nominated to a seat on the federal
judiciary, he or she undergoes extensive scrutiny in public confirmation
proceedings. In Massachusetts, the governor appoints judges for terms
expiring at age 70. Each appointment is made by the governor from a list
of 3 or 4 candidates, all of whom have practiced law for at least 15 years,
and who have undergone a comprehensive background review and are
CORDY_FORUM 4/11/2019 1:58 PM

2019 Mechanisms of Accountability 105

recommended by a nonpartisan judicial nominating commission

comprised of prominent lawyers, law faculty and retired judges. After an
appointment is made, the nominated candidate also undergoes a public
confirmation process during which he or she is questioned thoroughly
about their experience and credentials by a body elected for this purpose.
In the end, the goal is the same—a focus on merit, and the qualities that are
necessary to a lifetime of judging.
So why is an independent judiciary important to the functioning of a
constitutional democracy anyway? John Adams, who became the first vice
president of the United States, and its second president, articulated the
reason why as well as anyone has, when he drafted the Massachusetts
Constitution of 1780 (which became a model for the United States
Constitution seven years later). The Massachusetts Constitution states that,
“it is essential to the rights of every individual, his life, liberty, property
and character, that there be an impartial interpretation of the laws and
administration of justice,” and that, therefore, “it is the right of every
citizen to be tried by judges as free, impartial and independent as
humanity can provide.”3 Macedonia contains similar sentiments in the
preamble to its code of judicial ethics. Adams further wrote that neither the
legislative nor the executive branch of government shall ever exercise the
judicial power, “to the end that it be a government of laws and not of
men.”4
An independent judiciary as a third and equal branch of government,
charged with protecting the rights and liberties articulated in the laws and
the constitution – and acting as an impartial arbiter and buffer between the
government’s natural and often insatiable interest in increasing its powers,
and the people’s interest in access to equal and impartial justice – has been
called Adams “mighty invention.”5
All judges are each a part of that “mighty invention” and charged with
doing their important part to ensure a society that is governed by and
prospering under the rule of law. That is our great burden and our great
honor.
The Massachusetts Supreme Court is the oldest appellate court in the
United States. At this writing, it celebrates its 325th year – a hundred years
older than the United States itself. When I am asked what a court must do
to remain respected for so long, I think mostly of the motto on the court’s
seal: “we sell justice to no one; we deny justice to no one.” This mission

3 MASS. CONST. pt. 1, art. 29.

4 Id. art. 30.
5 Benjamin Kaplan, Introduction: An Address, in THE HISTORY OF THE LAW IN

MASSACHUSETTS: THE SUPREME JUDICIAL COURT 1692-1992, at 1, 4 (Russell K. Osgood ed.,

1992).
CORDY_FORUM 4/11/2019 1:58 PM

106 New England Law Review Vol. 52

comes from the Magna Carta – and if judges can do no more than just these
two things, they will have largely fulfilled their institutional
responsibilities.