Batesville Herald Tribune, Batesville, Indiana

December 13, 2011

Justice was innovative

Maureen Hayden
The Herald-Tribune

— Last Wednesday, after longtime Indiana Supreme Court Chief Justice Randall Shepard announced his impending retirement, he was showered with praise as a visionary.

But what those words hid was how irking that vision was to people he pushed, pulled, and nagged into doing better. 

In his 26 years on the high court – 24 as the chief – Shepard pushed the state to provide better defense for poor people and convicted killers, exhorted the courts to protect the rights of litigants who couldn't speak the English language, toughened the standards for practicing lawyers, and convinced the legislature to fund an affirmative action program for minorities to open up the hidebound profession of the law.

That's just a fraction of the things the Republican-appointed jurist did that raised eyebrows. It doesn't include the 2005 speech he made to the legislature in which he said Hoosiers had too long settled for "good enough" justice.

Or how he irritated some state legislators and local politicians when a 2007 blue-ribbon commission he chaired called for antiquated township government to be wiped out and small schools consolidated to save taxpayer money.

Gary Roberts, dean at the Indiana University law school in Indianapolis said Shepard is "widely regarded as one of –  if not the – most prominent and effective chief justices in the nation."

But earning that reputation has come with some push-back, Roberts said, from critics who think Shepard stepped too far out of the traditional judicial role.

"I, for one, think he was absolutely right to do it," Roberts said. "Everything Randy touches is better because of it."

Shepard is willing to hear the gone-too-far criticism. But as he approaches his 65th birthday on Christmas Eve, he doesn't spend time apologizing for crafting the role he's taken since first appointed the late Gov. Robert Orr in 1987.

Instead, the history-lover tells a favorite story about 19th century poet and philosopher Henry David Thoreau, who found himself behind bars for protesting slavery by not paying a state poll tax.

When Thoreau's friend, fellow writer Ralph Waldo Emerson, went to visit him in jail, Emerson reportedly asked, "Henry, what are you doing in there?"

Shepard finishes the story with relish: "Thoreau replied, 'Waldo, the question is, what are you doing out there?' "

Born a Hoosier, and educated at Princeton and Harvard universities before returning to southwest Indiana where he became a trial court judge, Shepard has made history as the nation's longest serving state chief justice. 

Joel Schumm, an Indiana University law school professor said Shepard has had a profound impact, beyond the 900 court opinions and 64 law review articles he's authored.

Schumm said Shepard pushed the court away from its past political partisanship and changed the kind of cases it heard. 

When Shepard first arrived, more than 90 percent of the cases were automatic appeals from criminal defendants protesting their long sentences. Now half the cases the court hears involve civil matters, from custody disputes to contract fights.

"It means the court is able to shape law in a way that ensures consistency around the state," Schumm said. "It allows the court to truly become the court of last resort, deciding significant matters of statewide importance."

Shepard remains on the bench until his current term – his fifth – runs out in March. He'll be chairing a judicial nominating commission that will vet applications to fill the justice spot on the court he's vacating. 

There are already rumors that his job as chief justice could be taken by the newest member on the court: Justice Steven David, a former Boone County trial court judge appointed in late 2010.  Like Shepard, David sees the court as a force for good that can make government live up to its obligations.

Shepard isn't saying his preference. Instead, he's focused on finishing up what he calls "a dream job."

 "You hope your life is used in a way that's both intrigruing and useful," Shepard said. "I couldn't have asked for more."

Maureen Hayden is the CNHI Statehouse Bureau chief. She can be reached at maureen.hayden@indianamediagroup.com