Listen to this article

We all know that judges are charged with the responsibility of resolving matters that are in dispute.

We recognize that juries play an important role in this process, but not all court determinations are the result of a verdict.

Countless decisions are made by the judge or judges assigned to the case. Accordingly, judges are granted authority to carry out this important task. At the risk of pointing out the obvious, judges have significant power.

For example, the Supreme Court may be called to rule on the constitutionality of a law passed by Congress and signed by the president. If the majority of the court decides that the statute runs afoul of the Constitution, the law is struck down.

Only a few issues are decided by the Supreme Court. The vast majority of decisions are made in the trenches by the trial judges.

During my career on the bench in both the state and federal courts, I applied that judicial power. Even though it is after the fact, I thought I would share with you how I looked at the power I held.

As best I recall, the notion first came to me when I sat in the family division in the state circuit court. People whose marriages had failed required a judge to determine property division (usually not that hard) and sometimes custody, visitation and support (always painful).

I never felt using the traditional adversarial system was the best way to handle the various issues involved in a family breakup. In my mind, it was like using a chain saw to do microsurgery. The chain saw image stayed with me even after I moved on. While it started as part of a criticism of the way things were done, the mental image helped me and may help the reader visualize how the authority of the court is viewed from the bench.

If a storm causes a tree to fall in my yard, it must be cleaned up. While a hand saw will get the job done, the chain saw will allow that cleanup to progress much faster.

On the other hand, using the same device to cut down my neighbor’s beautiful maple tree (without his knowledge or consent) would be a problem.

In each case, the chain saw was efficient and got the job done. However, in the first example, I had jurisdiction over my fallen tree and the authority to remove it. In the second case, I had neither jurisdiction over the property nor authority to cut loose with the saw. In fact, the action would have been criminal.

So it is with the judge. Before proceeding, there must be a determination that the court has jurisdiction and, if so, the judge has the authority to act. If the answer is yes, the judge may use the power of the court to resolve the case. If not, while it would not be a criminal act, attempted application of judicial power would be without effect.

A chain saw can be intimidating to the operator. If a person is so bothered by the potential danger involved in using the device, he or she may be afraid to pull the trigger.

So it can be for a judge. If the judge is afraid of adverse publicity or public criticism, the judge may be reluctant to make a decision in a timely fashion.

If a person has the right to use a chain saw for a particular purpose and is not afraid to operate it, the work must be done carefully. Reckless use of the chain saw can result in damage to property and injury to the operator and others. Safe practices allow the operator to accomplish a task efficiently. So it is with judicial power that must be applied carefully, thoughtfully and with restraint.

Whenever I thought of the authority of the court in terms of the power of a chain saw, I was reminded to make sure the matter was properly before me to resolve. If so, I had to be ready to apply the power without concern for the fallout. (That sounds so simple now, but there were plenty of times my hands were sweaty when I got down to the “sawing.”)

The final point I tried to keep in mind at all times was the basic truth that it was never my chain saw. It was entrusted to my care to be used to carry out my duties. When I returned to the private sector, I left it in the most capable hands of my successor.

David Bernthal of Mahomet is a retired 21-year federal magistrate. He is a counsel with the Webber & Thies PC law firm. His email is

Trending Videos