‘Without Respect to Persons’

by Law Week Contributor

By S. Kato Crews

“I do solemnly swear that I will administer justice without respect to persons … .”

These are the first 13 words of the Judicial Oath, which I took on Aug. 3, 2018. This phrase, “without respect to persons,” struck me upon taking the oath and continues to occupy my mind. This is in part because I find these words cumbersome in their combination; it’s further due to their tie to the administration of justice. And the current racial polarity in our country has thrust this quirky phrase to the forefront of my mind.

Codified at 28 U.S.C., section 453, the Judicial Oath was established 231 years ago, in 1789, with the passage of the Judiciary Act. This country’s abhorrent history of slavery existed from 1619 to 1865. The Judicial Oath, therefore, was established in the middle of the slave trade. This means the ideal of administering justice “without respect to persons” did not originally contemplate all of humanity because Black people were considered property — not persons — in 1789. So, what does this phrase mean over two centuries later?

In his book, “Disrobed,” Senior District Judge Frederic Block from the U.S. District Court for the Eastern District of New York wrote: “The job of being a trial judge in the federal court is to serve as the human face of the law — to see and deal with the real people, in all of their enormous diversity.” The diversity judges see today in our courtrooms is exponentially different from the persons who appeared before the courts in 1789, when the definition of “persons” was imperfect. And the different scenes in which these persons appear in our courtrooms is important to understanding that diversity.

As magistrate judges on the federal bench, we are often the first judge parties see in a civil case. Since over 98% of civil cases settle, we may be the only judge parties see over the life of their case because we preside over various pretrial proceedings. Our civil caseloads are heavy with matters involving pro se litigants, both prisoners and non-prisoners. These parties present additional considerations for judges. We must ensure they have a fair opportunity to pursue and present their claims, while being mindful that they are still held to the same standards and rules as lawyers.

In felony criminal cases, magistrate judges preside over pretrial proceedings. We make critical decisions on the release or detention of defendants pending trial, where statistics say those who are detained suffer higher conviction rates and other ills associated with pretrial detention. We see criminal defendants the day of or after an arrest when they are brought to our courtrooms in restraints and fear. We have a significant responsibility to ensure these individuals’ rights are preserved and honored, they receive fair and due process and that the presumption of innocence pervades every step.

We also have the honor of presiding over naturalization ceremonies. This is an opportunity to share in a historic moment in the lives of immigrant families, administer the Oath of Allegiance to the United States and welcome our newest citizens with open arms.

In practice, the reality of that “enormous diversity” that Judge Block refers to is wide-ranging. It transcends race, ethnicity, disability, national origin, gender, gender identity, political affiliation, sexual orientation and socio-economic status and encompasses non-U.S. citizens, non-English speakers, sovereign citizens, racists and others. And we take these persons as they come because the courthouse is the people’s house. Here’s what I’ve learned during my short time on the bench:

  • “Without respect to persons” means with respect to the enormous diversity of the real people who come before the court.
  • It means with respect to the personal dignity of each person.
  • It means with respect to the rule of law, and without respect to fear or favor.
  • It means with respect to the ideal of equal justice under law — the notion that our individual differences will not deter justice being done.
  • It means with respect to access to justice for those of little means.
  • It means with respect to equity and equitable treatment.
  • It means with respect to empathy and our own humility as public servants.
  • It means with respect to impartiality and neutrality no matter a person’s station in life.

But why should the responsibility of comporting oneself “without respect to persons” be a judicial function alone? As Supreme Court Justice Thurgood Marshall noted: “The very first truth which we declared self-evident in the Declaration of Independence was that ‘all men are created equal.’ Every person has the same ‘unalienable rights’ of liberty, liberty and the pursuit of happiness, and all persons are to be treated with respect and decency which those inalienable rights demand.”

Our inalienable rights demand nothing less than we all take an oath to administer our daily lives “without respect to persons.” But is this a mere aspiration or a mandate? History suggests the latter — first decreed in 1776 and later codified as a solemn promise of the judiciary in 1789 — all birthed over two centuries ago.

Considering these pronouncements were at the forefront of the founders’ minds when establishing this nation and its judiciary, it is evident that these should not be solely judicial responsibilities. They should be societal and universal truths. They should be societal and universal guarantees. If we all conducted ourselves in our daily lives “without respect to persons,” as Justice Marshall said, “[s]uch a society will be just, for every member will be treated with equal respect and dignity.”

— S. Kato Crews is a U.S. Magistrate Judge in the District of Colorado. The views expressed above are the author’s alone and do not represent the views of the United States District Court for the District of Colorado or any other court.

This article was published in the July 20 issue of Law Week Colorado. To read other articles from the issue, purchase a copy online.

 

1 comment

Elementor #3660 – Federal Magistrate Judges Association August 4, 2020 - 5:20 am

[…] Magistrate Judge Kato Crews (Colorado) published an Op Ed piece about the meaning of our judicial oath and how it relates to racial justice in the courts. Read the article here. […]

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