Cornerstones of Democracy: Civics, Civility, and Collaboration

This speech was given by Justice Sarah K. Campbell during the NBA 2023 Law Day on Friday, April 28, 2023.

Civility is a term we hear often these days, usually because someone is complaining about its absence. But what does the term civility actually mean? The Oxford English Dictionary identifies two senses in which the word civility is used today. The most common is the sense relating to “culture and civilized behavior.”1 Used in this sense, civility means “behavior or speech appropriate to civil interactions; politeness, courtesy, consideration.”2

For early examples of this kind of civility, we can look to George Washington’s 110 Rules of Civility and Decent Behavior in Company and Conversation.3 These rules were first compiled by the French Jesuits.4 Washington reportedly wrote them in one of his school books when he was a teenager, and they played an important role in shaping his character.5 Here is a sampling. Rule number 4: “In the presence of others, sing not to yourself with a humming noise, nor drum with your fingers or feet.”6 Rule number 5: “If you cough, sneeze, sigh, or yawn, do it not loud but privately; and speak not in your yawning, but put your handkerchief or hand before your face and turn aside.”7 These are certainly good rules to follow, but the current despair about a lack of civility does not seem to be driven by a sudden increase in humming, finger-drumming, or unshielded yawning.

Let’s consider a few more of Washington’s rules. Rule number 22: “Sh[o]w not yourself glad at the misfortune of another though he were your enemy.”8 Rule number 45: “Being to advise or rep- rehend any one, consider whether it ought to be in public[] or in private, presently, or at some other time, in what terms to do it, and in reproving sh[o]w no sign of choler but do it with all sweetness and mildness.”9 Rule 86: “In disputes, be not so desirous to overcome as not to give liberty to each one to deliver his opinion . . . .”10 Now we’re getting closer to the heart of the problem.

The second, less common, sense in which the term civility is used today is to mean “[c]ivil order; orderliness in a state or region; absence of anarchy and disorder.”11 This sense is closely related to now-obsolete uses of the term that linked civility to citizenship. For example, civility was once defined as the “[o]bservance of the principles of civil order; orderly behavior; good citizenship.”12 These definitions followed from the Latin and French roots of the word civility: the Latin root civilitas means “the art of civil government [and] politics” and the French root civilité originally referred to “organized community or its institutions” and only later began to refer to polite behavior.13

When we talk about a lack of civility in our society, we are usually referring to a combination of the two senses of civility. As the late University of Chicago sociologist Edward Shils noted, the two uses are not “wholly disjunctive.”14 “In political and public institutions, good manners, i.e., civility in the sense of courtesy, permit the collaboration of persons of diverse and often inimical dispositions.”15 While there are reasons we should care about manners for manners’ sake, what really concerns us is what coarsening manners mean for our polity. If we struggle to exhibit self-restraint and concern and respect for others in our interpersonal interactions, then how will our institutions of government effectively function?

I won’t pretend to know the answer to that question. But since today is Law Day, I will offer a few thoughts about how we as the legal profession can do our part to improve civility in both of its senses.

First, we can begin close to home by treating our colleagues, adversaries, and legal institutions with courtesy and respect. Your ethical duty to zealously represent your client does not require you to abandon civility. Tennessee Rule of Professional Conduct 1.3 requires that a lawyer “act with reasonable diligence and promptness in representing a client.”16 The comments to this Rule elaborate that a lawyer must act with “commitment and dedication to the interests of the client and with zeal in advocacy upon the client’s behalf.”17 Yet the comments also clarify that “[t]he lawyer’s duty to act with reasonable diligence does not require the use of offensive tactics or preclude the treating of all persons involved in the legal process with courtesy and respect.”18 My fellow judges and I are on the hook too. Rule 2.8 of the Code of Judicial Conduct provides that “[a] judge shall be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, court staff, court officials, and others with whom the judge deals in an official capacity, and shall require similar conduct of lawyers, court staff, court officials, and others subject to the judge’s direction and control.”19

Not long ago, I heard an attorney reminiscing about a prominent Nashville attorney who recently passed away. One thing that stood out to me was his comment that this attorney was beloved and respected even by his adversaries. That sort of praise follows a career marked by civility and professional courtesy. Many of the attorneys in this room are worthy of the same praise. We are truly fortunate that the Nashville legal community has so many good examples to follow.

Second, we can model healthy, reasoned disagreement and debate for others in our society. As lawyers, we are trained to see both sides of an issue and to identify the weaknesses of our own arguments. Our judicial system is premised on the belief that the adversarial model is the best means of ascertaining the truth. Lawyers, of all people, should be loath to cancel others or to refuse to engage with someone who holds a different view. We should embrace relationships with those who think differently from us and, with humility, seek to understand their perspectives and refine our own in response. Note that I said refine, not abandon. Engaging with those who think differently does not mean you have to agree with them. In fact, you might end up with an even deeper conviction that you are right and a better ability to explain why.

There is perhaps no better example of this than the relationship between Justice Scalia and Justice Ginsburg. Shortly after Justice Scalia’s death in 2016, Justice Ginsburg explained how seeing an unfinished draft of Justice Scalia’s dissent in United States v. Virginia, the case in which the U.S. Supreme Court held the Virginia Military Institute’s male-only admissions policy, improved her majority opinion.20 She recounted that the dissent was a “zinger” but that Justice Scalia’s “searing criticism” led to a “much improved” final draft of her majority opinion.21 When Justice Scalia was asked how two people who disagreed so often about the law could be get along, he responded “I attack ideas. I don’t attack people. And some very good people have some very bad ideas.”22 Justice Scalia not only refrained from attacking Justice Ginsburg personally, the two developed a close friendship that no doubt made it easier to debate issues with civility.23 Similarly, scholars have attributed the civility that marked the deliberations of the delegates to the Philadelphia Constitutional Convention to the close personal friendships that formed among them while they were housed together for months on end.24 If we want to increase civility, we ought to consider not just being willing to listen to those with whom we disagree, but actually getting to know them.

Third, we can devote ourselves to civic education—to helping our fellow citizens better understand our system of government and why civility is critical to its flourishing. The most recent Annenberg Civics Knowledge Survey, conducted in 2022, showed that only 47% of Americans surveyed could name all three branches of government.25 This was a decline since 2021, when 56% of Americans could name all three branches, but a significant improvement since 2016, when only 26% could do so.26 Returning to the Constitutional Convention, it has been suggested that another reason for the delegates’ success, in addition to their close personal relationships, was their shared “philosophical starting point,” which allowed them to have a rational argument by “appealing to the first principles” of their colleagues instead of “merely shouting at each other or talking past each other.”27 If more than half of Americans can’t even name the three branches of government, it’s no wonder so many conversations feel like shouting matches instead of reasoned discussions toward a common goal.

Many civic-education efforts are already underway in Tennessee’s legal community. The Tennessee Supreme Court started the Supreme Court Advancing Legal Education for Students (SCALES) program in 1995. With the help of local judges and Bar members, the Court has given thousands of Tennessee high school students the opportunity to see the Court in action and gain a deeper understanding of the role of the judiciary. Our intermediate appellate courts and trial courts are engaged in similar efforts, and the Tennessee Bar Association and many local bar associations host mock-trial tournaments, essay contests, and other creative programs designed to increase the civics knowledge of Tennessee’s students. There is still more that can be done, and I encourage all of us to look for opportunities to collaborate going forward.

JUSTICE SARAH K. CAMPBELL was confirmed as the newest member of the Tennessee Supreme Court on February 10, 2022. Justice Campbell previously served in the Tennessee Attorney General’s Office as Associate Solicitor General and Special Assistant to the Attorney General and as an associate at Williams & Connolly LLP in Washington, DC. She also served as a law clerk for Justice Samuel A. Alito, Jr. on the United States Supreme Court and Judge William H. Pryor Jr. on the U.S. Court of Appeals for the Eleventh Circuit.

Endnotes

1 Civility, OxfOrd English dictiOnary OnlinE (3d ed. 2023) [hereinafter Civility], https://www.oed.com/view/ Entry/33581 (last visited May 22, 2023).

2 Id.

3 See generally Richard Brookhiser, Rules Of Civility: the 110 PReCePts that Guided OuR fiRst PResident iinWaR and PeaCe (1997).

4 Id. at 4.

5 Id.

6 Id. at 28.

7 Id.

8 Id. at 41.

9 Id. at 57.

10 Id. at 80.

11 Civility, supra note 1.

12 Id.

13 Id.

14 edWaRd shils, Civility and Civil sOCiety, in the viRtue Of Civility: seleCted essays On libeRalism, tRaditiOn, and Civil sOCiety 63, 79 (Steven Grosby ed., 1997).

15 Id.

16 Tenn. Sup. Ct. R. 8, RPC 1.3.

17 Tenn. Sup. Ct. R. 8, RPC 1.3, cmt. 1.

18 Id.

19 Tenn. Sup. Ct. R. 10, RJC 2.8.

20 Justice Ruth Bader Ginsburg, Remarks for the Second Circuit Judicial Conference 2–3 (May 26, 2016) (transcript available at https:// www.supremecourt.gov//speeches/remarks%20 for%20the%20second%20circuit%20judicial%20 conference%20may%2025%202016.pdf)

21 Id. at 3.

22 Id. at 8.

23 Id. at 9–10.

24 See, e.g., Derek A. Webb, The Original Meaning of Civility: Democratic Deliberation at the Philadelphia Constitutional Convention, 64 S.C. L. Rev. 183, 192–93 (2012).

25 Americans’ Civics Knowledge Drops on First Amendment and Branches of Government, annEnbErg Pub. POl’y cEntEr, univ Of Pa (Sept. 13, 2022), https:// www.annenbergpublicpolicycenter.org/americans-civics-knowledge-drops-on-first-amendment-and-branches-of-government/

26 Id.; Americans’ Knowledge of the Branches of Government Is Declining, annEnbErg Pub. POl’y cEntEr, univ Of Pa (Sept. 13, 2016), https://www.annenbergpublicpolicycenter.org/knowledge-of-the-branches-ofgovernment-is-declining/

27 Webb, supra note 24, at 207.