He’s concerned, so he wrote about it. In 2018, former judge Charles Benjamin Schudson, a Jewish Milwaukee native, published a book exploring the pressures on the independence of judges.
Today, his concerns have only continued, or grown larger.
“Independence Corrupted: How America’s Judges Make Their Decisions,” is a tour of what happens behind the scenes in the law, sometimes in the worst of moments. It includes his own accounts of what happens in the cloak rooms of the Wisconsin judiciary. Schudson is a former trial and appellate judge and law professor.
In one chapter of the 2018 book, he relays an account of when two other judges appeared to change a planned ruling in contrary to the law, to appear tough on crime. They must run for office, after all.
In another chapter, he tells a tale of another Wisconsin judge allegedly misusing alcohol while ruling on a case involving the terrible Milwaukee Brewers stadium construction accident that killed three people in 1999. It affected the case, according to Schudson.
The book is as relevant as ever, he said, as a look at the real pressures on judges. But with an eye to the future, he has other concerns, too.
Formed in Jewish Milwaukee
Rabbi Dudley Weinberg was the spiritual leader of Congregation Emanu-El B’ne Jeshurun from 1955-1976. As Schudson remembers it, the rabbi clenched his fist and told him and others: “March with Father Groppi … you are not a Jew unless you care about civil rights.”
Schudson took it to heart.
“For me, Rabbi Weinberg and his political activism sealed the deal,” he writes in his book. “Whatever my misgivings, whatever my liturgical ignorance, whatever my deistic doubts, I knew I was a Jew.”
Thoughts on the Supreme Court
Schudson said it can be difficult to know what truly motivates someone on the bench. This certainly applies to the Dobbs case, he said, the U.S. Supreme Court decision that returned abortion decision making to the states, in June. Five justices voted to overturn Roe v. Wade with that decision.
In general, legally conservative justices may seek to conserve – legally. They can be more apt to read the language of the Constitution narrowly, not broadly enough to expand government powers. These justices can be less likely to connect the dots of language. They may not choose to view text through a modern lens.
That’s conservative legal thinking, but it’s also true that legally conservative justices can be morally or religiously conservative, and this is where a lack of clarity on motivation can come in.
“I would not be at all surprised to learn that for one of them, it was a scholarly, deep seated understanding of constitutionalism, and for another, it was a fervent, religiously inspired set of moral values.” Schudson said in an interview, thinking of the members of the Supreme Court and the Dobbs ruling.
Schudson notes that he’s been asked for his thoughts on Dobbs many times, by lawyers who hadn’t read the text of the decision. He advises, “don’t you think that before we attribute certain motives to Justice Alito and his colleagues and condemn them on the basis of ethics, morality and legal analysis, don’t you think in fairness, we should at least read his words before condemning?”
Thoughts on the country
“I find that for a few years now, I’m quoting a 1960s bumper sticker, which reads, ‘If you’re not depressed, you’re not paying attention’,” he said, interviewing before the U.S. midterm elections. He’s concerned about the strength of the American system and rising antisemitism.
He’s learned how judges in other countries must sometimes be part of a corrupt system or worry they’ll be targeted for not taking part. He says we should not pretend that such things could never happen here.
“There haven’t been all that many democratic republics with independent judiciaries. But the founders understood that. And I think scholars understand that a democratic republic sooner or later will crumble. Because there will always be evil, there will always be people of malice and ambition, who can only get their comeuppance if there are independent judges who have the authority to say, ‘No, Richard Nixon, no, you don’t get to do that’.”