By now, everyone has heard the story of Mississippi Chancery Judge Talmadge Littlejohn holding lawyer Danny Lampley in contempt for his failure to speak the words he wanted to hear:  I pledge allegiance . . .   After a few hours, Judge Littlejohn relented, though the issue, as far as he’s concerned, remains unsettled.

Tom Freeland at NMissCommentator reports that while Lampley was released after three hours, the order was merely held in abeyance pending further consideration.  When Lampley returned to the courtroom to handle his hearing, he asked the judge to recuse himself, which was refused.  The duty to pledge allegiance was addressed long ago.  Judge Littlejohn has been excoriated across the blawgosphere for his conduct.  Balko, Bennett, Volokh, Frederick, Turley, Mystal, and obviously Tom Freeland, have all had their say. 

No need to restate the obvious.  Judge Littlejohn may see himself as quite the patriot, and his demand that people in his courtroom utter the pledge as perfectly reasonable thing to do, upon pain of contempt.  The law provides otherwise.  Judge Littlejohn may disagree with the law.  Tupelo hasn’t always been on the cutting edge of such matters. 

What cannot be ignored is the power that a judge wields within the four walls of a courtroom.  Whether the most brilliant or most unstable and ignorant, a judge is a king on his bench.  With the wave of a hand, an utterance, a signature, a judge can deprive a person of freedom.  It’s that simple.

Tom Freeland was preparing a writ or mandamus to deal with Danny Lamley’s incarceration, but it was mooted, at least for the moment, upon his release.  It’s not that some nutsy judge’s knee-jerk order isn’t subject to review by less nutsy judges, but that for those few hours, the mere caprice was sufficient to lock a person away. 

And while the reason, this time, was Danny Lampley’s exercise of his absolute right not to utter the magic words that somehow distinguish a good American from a bad one in Judge Littlejohn’s mind, this same power exists when a cellphone inadvertently rings, or a defendant wears clothing that doesn’t meet the judge’s aesthetics.

A judge is given extremely broad latitude to maintain decorum in a courtroom. The rhetoric of the rationale aside, it often appears to be a mini-slap in the face to due process.  “Because I said so” is the ultimate reason why a judge can exert such power.  Not every order has to be put through its paces before being followed.  But as Lampley’s contempt shows, there really isn’t any bright line where the immediate action of a judge stops dead in its tracks.

Why, for example, did the court officers who took charge of Lampley following the order to jail him not refuse?  Why didn’t they instead grab hold of Judge Littlejohn’s arms and walk him briskly from the room, as one who just used his official position to assert authority he didn’t possess to the detriment of another person?  The answer, of course, is that Littlejohn was the judge and Lampley was not.  It’s not for the armed staff to question the judge, and they would never been expected to do so.  The judge gives orders, no matter how bizarre or wrong, and the staff complies.

Incidents like this point to a glaring hole in the system, that some judges are unworthy of the trust, and hence the power, given them. There are those judges who lack the appropriate temperament.  There are those judges whose politics obscure their understanding of their duty.  There are those judges who lack an appreciation of the limits of their authority, like Judge Littlejohn, or the restraint to act upon it immediately.

The reason actions like Judge Littlejohn’s make a splash in the media, and across the blawgosphere, is that they happen relatively infrequently.  That speaks well of the judiciary, given that power corrupts. It’s awfully easy to assert authority on a whim, only later, upon further reflection, recognizing that it was wrong.  It likely happens more than anyone knows, but in sufficiently small doses that it doesn’t make it onto everyone’s radar.

Still, when electing or appointing a person to wear the trappings of power and sit high above mere citizens, we need to do better.  Some years ago, Mark Bennett made the point that anyone who wants to be a judge, who believes himself capable of sitting in judgment of others, is not a person who should be entrusted with such power.  I’ve made the point that judges who see their bench as a bully pulpit to flail their personal issues, whether by haranguing defendants at sentence or refusing to adhere to law with which they don’t agree, have no business wearing the robe.

Once a person gets the robe, however, it’s extremely difficult force them to take it off.  Short of drugs and sex, or the occasional chambers philandering, bad decisions are considered part of the game.  That’s why they created appellate courts is the response, to be followed by a subtle laugh.

Yet when an order of contempt for something so clearly wrong as failing to utter the pledge results, one thing is brutally clear. This is not a judge who can be entrusted with the near-absolute power of a king in his courtroom.  Talmadge Littlejohn behaved like a sovereign, commanding all before him to do his will.  The robe is not an ermine stole.  The bench is not a throne.  Littlejohn is not the king.