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This sort of dialogue is vitally important to our system of government and to the continued improvement of our system of justice. The judicial branch is often described as the least understood branch of state and federal government.

There are times, when I pick up a newspaper of watch the news on television, when it is very evident to me that the public's expectations regarding our judicial system are unrealistic. Greater public awareness and understanding of the function of the judicial branch and importance of judicial independence are worthy goals.

No one has done more to educate the American public on the value of judicial independence than our honored guest, Justice Sandra Day O'Connor.

I wholeheartedly agree with the message that she delivers through her speaking and writing throughout the nation. And I deeply appreciate her willingness to take on this particular task when she could be enjoying a more relaxed pace during her retirement.

Those of us here today must commit ourselves to delivering the same message to the people of Illinois. While it is important for all Americans to appreciate the value of an independent judiciary, it is even more important for Illinoisans to be aware of its importance because our judges face periodic retention votes.

These retention elections serve a useful purpose. The judge who anticipates standing for retention has every incentive to manage his or her docket efficiently, to treat parties, witnesses, jurors and attorneys with courtesy and respect, and to render timely, fair and impartial decisions.

However, our system of judicial election and retention also poses a risk.

When a circuit judge, or an appellate panel, or a majority of our state Supreme Court finds a popular statute unconstitutional on single-subject grounds, or rules that an accused criminal must be released because of a violation of the Speedy Trial Act, the public might be inclined to react by holding individual judges or justices responsible for what is perceived as a bad outcome.

The judges who must make these hard choices are, however, constrained from justifying or explaining their decisions in public. We do not hold press conferences or prepare press releases justifying the actions of the court.

The written orders and opinions that do explain the decisions are not likely to be read by the public or to be understood, even when they are fully and accurately reported by the media.

Yet, only if the electorate appreciates not only the value but also the absolute necessity of judicial independence can we ensure that judges are free to make these hard choices based on the facts and the law, free from political, media or public pressure.

Indeed, a significant portion of the general public has only a vague appreciation of how our court system functions. Many non-lawyers are under the mistaken impression that every decision of every court in the country may be appealed to the U.S. Supreme Court.

Many otherwise well-informed people do not appreciate that our state Constitution differs from the U.S. Constitution and that it guarantees more rights, but can never limit the rights of the federal document.

And I know from personal experience that many people believe that when they have a strong opinion about a pending case, they should write or telephone a judge the way one might call a legislator or write a letter to the governor to comment on proposed legislation.

The burden of educating the public falls most heavily on retired judges who are now above the fray, and on the members of the bar who recognize that judicial independence is not a benefit conferred on judges, but a fundamental premise of our system of justice that benefits every litigant in every courtroom in our land.

As Justice O'Connor has repeatedly noted, “There is no natural constituency for judicial independence.”

I can add little to Justice O'Connor's message on the recent threats to judicial independence. Other speakers today will discuss the best ways of getting these messages across to the general public. So what I would like to talk about today is another value: judicial restraint.

I do not use the phrase “judicial restraint” as some sort of code word to signal the opposite of co-called “judicial activism.” Frankly, I don't find the term “judicial activism” to be a very helpful concept, since it often seems to refer to any decision that the speaker disagrees with.

And I am not espousing a judicial philosophy on the order of “original intent,” as understood by Justice Scalia, or “judicial minimalism,” as described by University of Chicago Prof. Cass Sunstein.

Instead, I am using judicial restraint in the more colloquial and pragmatic sense – in the sense of self-discipline. The restraint or self-discipline that I am talking about is entirely compatible with the value of judicial independence.

Indeed, when judges habitually exercise restraint, it becomes even more clear to the public that when a hard choice has to be made, the decision is reached only after careful consideration.

Today, I would like to talk about five specific traits of judges who exhibit judicial self-restraint or self-discipline.

If judges exemplify these traits, the public may be more inclined to appreciate the need for judicial independence and less inclined to launch attacks against judges who must make unpopular decisions. And frankly, in my opinion, the public has a right to expect the judges it elects to possess each of these traits.

First, a wise judge decides only those issues necessary to the resolution of the instant case, and is guided in those decisions by the constitution, statutes and the doctrine of stare decisis – in that order.

We must always keep in mind that the cases belong to the parties, not to their attorneys, and certainly not to the judges. The issues are raised by the parties, argued and presented to us for decision. It is not our function to reach outside the case to ask and answer a different question.

That said, we must always keep in mind that the party who frames the question exerts a subtle but real influence on how it will be analyzed and answered. We must guard against the temptation to accept, uncritically, either party's formulation of a question.

Having identified the issues presented, we must consider whether it is necessary to address each and every one of them. Indeed, the doctrines of standing, mootness and ripeness may make it unnecessary, or even inappropriate, to address the issues at all.

We must ask which issue or issues are determinative of the case, and which questions might be left for another day. One important consideration is whether an issue has been properly preserved by a timely objection and post-trial motion. If the issue has been forfeited, we should not lightly overlook the doctrine of procedural default.

Certainly, if we are called upon to consider whether a statute or an action by the state is unconstitutional, we should decline – out of deference to our co-equal branches of government – to reach the constitutional question unless it is necessary to the case.

Some litigants expect the court to change the law, or to make new law to suit them. At the same time, other litigants rely on the law as it is, and expect the court to apply it without change.

One of the challenges that we face when spreading the message of judicial independence is educating the public to look to the legislature, rather than the courts, for changes in the law.

A humble judge gives deference to other decision makers when it is appropriate, and treats everyone who comes into contact with the court system with courtesy and respect.

Judges and lawyers, as a class, are not well-known for their humility. Perhaps this can be explained by the way we are portrayed on television and in films.

Nevertheless, we must act with humility when the questions we are asked require us to examine the work of the legislative or executive branches, or of another member of the judiciary.

Humility is not an expression of self-doubt. It is an acknowledgment that, in certain circumstances, another entity or person is in a better position to make a certain decision.

We, therefore, give deference to legislative fact-finding. We read and apply our Constitution and statutes as they are written. We do not find ambiguity where there is none, and we resolve ambiguity, as best we can, consistently with the intent of the legislature.

We presume that our legislators did not intent to enact a statute in violation of the Constitution, and we construe the language they employed to preserve constitutionality whenever possible. Similarly, we must feel constrained by the standards of review that guide our appellate process.

Once while judging a moot court competition, I heard an attorney who was also judging inform the students not to pay attention to this “standard of review stuff. It's academic hair-splitting,” he said. “In real life, it never matters.” He could not have been more wrong!

I cannot tell you how many times, on both the Appellate Court and the Supreme Court, I have had conversations with my colleagues in which one of us has said, “If this case were before me in the circuit court, I would have reached the opposite result,” or “If it were up to me, I would have kept this evidence out (or let this evidence in).”

But, because the issue is one that is governed by the abuse of discretion standard, reviewing courts defer to the circuit court judge.

The public has the right to expect judges to act with the humility befitting a public servant. This requires us to be polite and patient with counsel, litigants, witnesses and jurors. It requires a recognition that while the office we hold is deserving of respect, that respect is owed to our function and not to ourselves.

A conscientious judge is committed to the concept of procedural justice. In recent years, a lot has been written about this concept, which is based on the premise that every party to every case should leave the courthouse with the feeling that he or she has been treated fairly, even if the result is not what he or she had hoped for.

Writers identify several aspects of procedural justice. First, all participants in court proceedings, including witnesses and jurors, should perceive the process as fair and neutral. Second, they should see the decision maker, whether judge or jury, as trustworthy. And third, they should be treated with dignity and respect during their interaction with the court system.

A conscientious judge makes it a priority to deliver procedural justice on a daily basis because the public has a right to expect it.

A conscientious judge also demands civility and professionalism in his courtroom, understands that his time is not more valuable than the time of attorneys, parties, witnesses and jurors, and renders rulings that are both prompt and thorough.

If judges expect the public to appreciate the need for judicial independence, we must be competent. A competent judge is knowledgeable and constantly maintains his body of knowledge through continuing education.

A competent judge is both expeditious and methodical in hearing and deciding disputes. In some cases, such as those involving child custody, domestic violence or similar issues, the need for a prompt resolution is obvious. But in all cases, it is important to the parties to have their dispute dealt with in a timely manner.

Every dispute – whether it involves breach of contract, personal injury, employment or a property tax appeal – is of great importance to the party who brought the case and to the party defending against it. They deserve not only our best efforts, but our prompt attention, because as has often been said, “Justice delayed is justice denied.”

That said, in our effort to move cases along, we cannot be inattentive to detail. An order or opinion that unnecessarily invites further litigation because it is ambiguous or incomplete does not serve the parties of the public.

An ethical judge is scrupulously fair, free from bias or prejudice, and willing to recuse him or herself if there is a conflict of interest.

In sum, the public has a right to expect its judiciary to be wise, humble, conscientious, competent and ethical. A judge who does not possess these traits of self-discipline risks the loss of his or her position.

In contrast, the judge who does display these traits, but who must render an unpopular decision because the facts and the law demand it, deserves admiration – not censure – from the public.

Judicial independence is also threatened when those who come into contact withy the judicial system do not feel well-served. Because litigation is a zero-sum game, there will be at least one litigant in every case who feels that the outcome is wrong.

Only if this person perceives that the judge or justices who heard his case acted ethically and with competence, conscientiousness, humility and wisdom, will he be inclined to value the process even as he disagrees with the result.

These threats to judicial independence are not new. As far back as 1846, when our neighbors to the north were debating the question of an elected versus appointed judiciary at the Wisconsin Constitutional Convention, one of the delegates declared that the judiciary:

“Represents no man, no majority, no people. It represents the written law of the land … It holds the balance, and weighs the right between man and man, between the rich and the poor, between the weak and the powerful.”

If the public believes otherwise, it is our duty as members of the bench and the bar to address this misunderstanding. We must inform the public that the judges do not respond to opinion polls, and that each individual case is decided on the facts and the law, without favor or prejudice, and without compromise or deal-making.

We must educate the public at every opportunity on the very different roles of the three branches of government. We must explain that the judiciary does not legislate and that, so long as the Constitution permits it, courts defer to the people's elected representatives.

The message that Justice O'Connor has carried to the nation and the world on the need for judicial independence in any free society will be understood and accepted at the grass-roots level only if practicing attorneys carry the same message to their clients and their communities.

Only when the public gains an understanding of how the judicial branch functions can we expect there to be a widespread concern about recent threats to judicial independence. Unfortunately, when sitting judges try to spread this message, it too often sounds self-serving, as if we believe that we are above criticism.

I close my remarks today with a call to action. Judges need the assistance and support of the bar as we strive to deliver procedural justice.

Your presentation of issues, your re--search, and your zealous advocacy inform our decision-making. Your education and instruction of your clients sets their expectations and influences their perceptions of the legal system. And finally, you bring us the hard questions.

You are the ones who file the motions, and complaints, and answers on behalf of your clients seeking relief that might be controversial, or dismissal of a claim that the public might view as just. In the end, you and your clients rely on the independence of the judiciary.

To the academicians, public officials and members of the oppress, you are also an important part of this call to action. You must bring a message to others about what can be realistically expected of the judicial system.

Judicial accountability is very important to be sure. Reform is always an appropriate consideration. Preserving judicial independence must be the ultimate goal.