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June 01, 2017 HUMAN RIGHTS

Introduction: The Role of Courts in Our Society

by Alexander Wohl

Is there any aspect of our republic more essential to its effectiveness and continuity than the independence of our nation’s courts and their ability to uphold the Rule of Law? It is, after all, our judiciary that has the awesome responsibility to ensure not only that order is maintained in our nation but also that the struggles the citizens of our country engage in with each other—whether over law, ideas, politics, or social values—are resolved peacefully, sensibly, and fairly. And, that those conflicts do not overwhelm or undermine the civil society that allows for the continuing vibrancy of those debates in furtherance of our democratic traditions.

As the former New York Times Supreme Court reporter and now contributing columnist Linda Greenhouse recently wrote, “The rule of law provides confidence that what is true today will still be true tomorrow. It undergirds the resilience necessary to absorb the inevitable shocks any political system faces.” While our system of checks and balances plays an important role in ensuring this stability and balance in our system, it is the courts that have the ultimate responsibility for maintaining this through preservation of the Rule of Law.

Indeed, it is the accountability of our system of laws and their interpretation and upholding by our courts—local, state, and federal—which have provided the continuity, consistency, and progress for our nation. And it has helped differentiate this history from the turbulent records of so many other nations of the world by shielding us from authoritarian and anti-democratic actions.

This issue of Human Rights magazine, which focuses on the role of courts in our society, could not come at a more appropriate or important time, as we face a period of potentially enormous political transitions, uncertainty, and significant challenges to the Rule of Law. In addressing this vital aspect of our nation and government, this issue of the magazine seeks to reaffirm and underscore the critical role that courts play in safeguarding our history of responsible, democratic self-rule. It is a history premised on the understanding that laws must not and cannot be interpreted for the benefit of one man or one group of citizens. Indeed, as U.S. Supreme Court Justice William J. Brennan Jr. said, “our Constitution was framed fundamentally as a bulwark against governmental power, and preventing the arbitrary administration of punishment is a basic ideal of any society that purports to be governed by the rule of law.” Only when our system of law maintains accountability and works to protect all citizens, especially the most vulnerable members of society, can our nation truly prosper and flourish.

The issue opens with two articles examining the critical subject of how judges are appointed (or not appointed) to our federal and state courts and the implications of what can happen when this process is tainted. First, Russell Wheeler, a leading expert on the federal judiciary, a senior fellow at the Brookings Institution, and the former deputy director of the Administrative Office of the Courts, writes about the challenges of selecting federal judges in an era of political polarization. Next, David Lyle, the director of the state courts project at the American Constitution Society, looks at how the growing politicization of state courts poses a serious threat to fundamental rights. For further amplification of this development, Emory Law Professors Joanna Shepherd and Michael S. Kang present a summary of their recent comprehensive study “Partisan Justice,” which found that the electoral and political pressures of today’s judicial election system encourage judges to engage in partisan decision-making.

It’s not just the judges who can have an impact on the role that courts play in protecting the rights of citizens. Access to courts can be limited in other ways, particularly for the less affluent and most defenseless. Scott L. Nelson, of Public Citizen Litigation Group, outlines how corporate and other interests have succeeded in erecting enormous barriers between the judicial system and citizens—particularly those who seek to sue to protect their rights as consumers or employees. Thomas B. Harvey, of ArchCity Defenders, explores the ways in which police and courts have combined to create, enforce, and legitimize practices that have created a class of people who have been jailed because of their poverty. And Lisa A. Hayes, of the Center for Democracy & Technology, identifies the challenges for parties who may face rulings by judges whose knowledge of advances in technology is, at best, limited.

Finally, this issue looks at some of the ways in which courts focus on specific needs and demands of individual populations. Dean Stacy Leeds: a former justice of the Cherokee Nation Court who is now dean at the University of Arkansas Law school, considers one of these, taking a close look at the status, respect, independence, and outlook for the nation’s tribal courts after the Dollar General case. Marsha Levick, of the Juvenile Law Center, looks at the role of juvenile justice in the courts that have responsibility for this issue.

This important issue of Human Rights concludes with a tribute to a man who has had an enormous impact throughout his career, not just on courts, but also on the Rule of Law and the development of wise and sound legal policy in this country. Judge Abner J. Mikva, who died last year, was a former chair of this section of the ABA, as well as the chief judge of the U.S. Court of Appeals for the D.C. Circuit, and former representative in the U.S. House of Representatives. Judge Mikva spent a lifetime working to ensure that our democracy functioned at the highest level and that our courts maintained their integrity and legitimacy in order to ensure that they protect the rights of all citizens. He is a true Human Rights Hero.

We hope you enjoy this issue, which offers stimulating reading for challenging times. It is the responsibility of concerned, caring, and knowledgeable citizens to ensure the continued vibrancy of our courts and the nation they serve. As Abraham Lincoln wrote, “We the people are the rightful masters of both Congress and the courts, not to overthrow the Constitution but to overthrow the men who pervert the Constitution.”

Alexander Wohl is a speechwriter and the author of Father, Son and Constitution—How Justice Tom Clark and Attorney General Ramsey Clark Shaped American Democracy (Univ. Pr. of Kansas 2013). He is also a member of the Human Rights Editorial Board.