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May 05, 2023 Feature

Cornerstones of Democracy: Building Confidence in the Justice System Through Civics, Civility, and Collaboration

By Judge Adrienne C. Nelson

The construction of the U.S. Constitution and, through it, the American government was not an easy feat. The founding fathers grappled with its structure, the various checks and balances, and balancing majority rule with minority voice. Disagreement abounded on certain points; however, one point of commonality was the value and importance of popular sovereignty and public participation in government regulation. As James Madison stated, “[T]he people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived[.]” Two-hundred thirty-five years later, many members of our society do not understand the depth of that meaningful role.

Over the past few decades, American society has become increasingly polarized. Polls over the years have documented a decreasing public trust in our government institutions. The Pew Research Center conducts a poll each year to document American trust in their government, and that percentage has declined since 2001, when about 60 percent of Americans said they trusted the federal government to do what is right just about always/most of the time, to a mere 20 percent in 2022.

Restoring American faith in our government institutions requires more than promises and speeches. It requires a commitment to returning to and living up to the American values on which our country was founded. The basis of our republican democracy is the American people, but they cannot wield a power that they do not understand. To regulate and assess a government body, one needs the ability to understand it first. The obstacle facing many Americans today is not an inability to understand how our government functions but rather the plethora of information bombarding people each day. In the digital media age, where the news is more accessible on Twitter feeds than daily newspapers, it is far too easy to obtain tidbits of information rather than a complete picture. That is why civics education is critical to re-engaging the American public in their civic responsibilities.

“Civics education” is a broad term that is often spoken about without identifying the precise features that make it an integral part of meaningfully engaging in American society. At a basic level, civics education includes civic knowledge and skills. That is, it is an education on the “process of government, prevalent political ideologies, civic and constitutional rights.” However, a comprehensive civics education goes beyond a foundational understanding of how the American government functions. It also seeks to establish an “appreciation for civil discourse, free speech, and engaging with those whose perspectives differ from our own” and to “develop the civic agency and confidence to vote, volunteer, attend public meetings, and engage with [ ] communities.” Essentially, the goal of civics education is to provide individuals with an understanding of how the American government works, while also fostering the skills necessary to discuss political issues civilly and collaboratively, and fueling a desire to actively participate in American society for the public good.

Unfortunately, the level of civics education that many Americans receive does not adequately meet those lofty goals. For example, the judicial branch is complex, partly because the structure of American court systems is incredibly complex. The federal level contains district courts, circuit courts, and the U.S. Supreme Court, and each state contains its own trial courts, courts of appeals, and supreme court (though the precise names of these courts may vary from state to state). Yet, the average American receives little information about how those various courts work together. The judicial branch does not receive a large amount of media coverage, and the coverage that is aired is not representative of how the vast majority of courts in the United States function. For example, when the Supreme Court issues an opinion that involves a controversial social issue, the information that the public receives about those opinions is not always presented in a manner that encapsulates the Court’s rationale, its interpretative process, or the impacts of its decision. Rather, the public receives the headline that a well-known case was overturned, or a constitutional right was expanded, with little information about why that decision was made. Or, as another example, when a federal district court issues a controversial opinion, it may engender concern precisely because the public does not know that those decisions are subject to review by, at least, one other court. This piecemeal understanding of government leads to confusion and strong emotional responses when judicial decisions are made that contravene individual personal or social beliefs. At the same time, a limited understanding of the way that the judicial branch is connected to the other two branches of government could lead individuals to believe that they have no recourse or ability to impact the outcomes that they do not agree with.

I am hopeful that every American can be taught about the judicial system. However, the goal is not perfection; the goal is education. The public does not need a three-year education, like lawyers, on interpreting statutes to obtain a solid, foundational understanding of the court systems and how judges apply the law to different facts. That foundation would sufficiently allow the public to meaningfully engage with the judicial branch because they will understand both its purpose and how it functions. That is the true goal of civics education: foundational knowledge.

However, foundational knowledge includes more than an understanding of the government itself. Intertwined with that understanding is the goal of establishing civic values and behaviors that encourage civility and collaboration. Civics education is an opportunity to put aside the polarizing topics and beliefs that divide our country and meet on common ground. Civics education is a bipartisan issue—both democratic and republican government actors have recognized the value of a public that understands its government and its role within that government. Bringing people together for civics education is an opportunity to bring both groups to the table, but in a way that maintains and demands civility. Individuals may have different perspectives or beliefs about how the government should work, but that does not mean civil and collaborative discussions about how the government does work cannot occur. In fostering civics education, we must also seek to foster community by maintaining respect and civility as we work together to fill knowledge gaps. Civics, civility, and collaboration encourage and build confidence in the justice system.

The need for civility in these discussions is why the legal community is an essential component to promoting engagement in civics education. The essence of a lawyer’s role is to “agree to disagree.” When motions are filed and oral arguments are heard, or when an attorney objects to the admission of evidence, each attorney believes their position is correct. However, the arguments are maintained with civility because each attorney is trained to focus on the merits of their position and the arguments that are being made rather than the individual who is making the opposing argument. When the judge makes their ruling, the losing attorney takes the loss with respect and, although they may disagree with the decision, the attorney continues with the trial in a civil manner. An attorney’s job is innately adversarial, but an adversarial role does not require incivility or disrespect. The ability to approach difficult topics, where opinions and beliefs may differ, in a civil and respectful manner is what attorneys need to model when they engage in civics education. In a sense, an attorney’s behavior can be an example of the very civic values that civics education seeks to implement: the ability to civilly dialogue and engage with individuals who hold different perspectives than our own.

While modeling, attorneys also have an opportunity to impact the civic knowledge aspect of civics education. Attorneys are well-positioned to engage in discussions and educate individuals about the functions of government precisely because their jobs touch on each government branch. Attorneys have a greater depth of knowledge about how the judicial system works than the average American. The average American may not understand the difference between the federal court system and the state court systems, but an attorney does. Understanding the legislative branch, how statutes are constructed and amended, and the impact of legislative bills are all skills that attorneys must develop in their careers. In the same manner, attorneys understand that the executive branch can also impact the legal landscape, but they recognize the nuances in the types of changes and the impact of those changes in a way that other citizens may not.

Aside from the mechanics of each government branch, attorneys receive a comprehensive education on constitutional law. Constitutional law is a foundational course in many law schools across the United States—from a future lawyer’s first year of law school, they receive an in-depth civics education that many Americans do not have access to. To be sure, not every American may need to fully understand the various doctrines used to interpret the U.S. Constitution or the other narrower topics that are discussed in constitutional law classes. But the depth of knowledge that attorneys have on that topic, and other civic topics, allows them to engage in fundamental discussions about civics in a way that enhances the understanding of individuals who do not have the benefit of a legal education. Further, attorneys can aid the flow and direction of discussions during educational opportunities by identifying legitimate points and disrupting misinformation precisely because they understand the topics at a deeper level. In essence, attorneys engaging in civics education can help to provide Americans with an accurate, foundational understanding of civics that encourages them to engage more meaningfully in society while also emphasizing the importance of that engagement precisely because attorneys understand how impactful civic engagement can be.

Attorneys are not the only members of the judicial system that have an opportunity to foster civics education. Judges actively choose not to delve into the world of politics because doing so undermines American confidence in the neutrality of judicial offices. That decision to stray away from the polarity and bias of politics is an essential aspect of a judge’s role and it would be erroneous for that balance to be disrupted. However, civics education is not a subject that impacts a judge’s neutrality. The importance of civics education is not a contested political issue and taking opportunities to increase civic engagement is not conduct that would affect a judge’s perceived neutrality.

In fact, it is that neutrality itself that makes judges ideal actors for getting the legal community involved in civics education. Engaging in civics education is not asking judges to be activists; rather, it asks judges to model collaboration and emphasize how that collaboration benefits American society as a whole. As neutral actors, judges continually must walk the line of addressing difficult topics in a respectful and civil manner. Many of the cases that judges preside over involve topics that are deeply meaningful to Americans, be it abortion, gun control, criminal sentencing, and so forth. Bridging the gaps between the law applied in the case and the personal opinions of the public is difficult, but it must “begin by respecting the fact that these are very difficult issues and that people of good faith are going to come out differently on them.” A judge’s job is to apply the rule of law, but sometimes judges may disagree as to how that law should be applied because of the manner in which they interpret the arguments or the governing law. For many judges, the role is a collaborative one that requires the ability to hear other viewpoints and perspectives with an open mind. That is, a judge’s position requires both collaboration and civility—two features that are essential to fostering meaningful civics education.

The collaborative nature of a judge’s job is not always highlighted in the media, and that is why it is all the more important that judges choose to participate in civics education. The most frequently reported on judicial actions are those that elicit the most controversy: U.S. Supreme Court confirmation hearings or Supreme Court opinions on issues like freedom of religion, affirmative action, or gun control. That type of coverage does not highlight the fact that a large percentage of opinions issued by a judicial panel are unanimous. That type of coverage does not highlight the fact that Justice Ruth Bader Ginsburg and Justice Antonin Scalia fostered a genuine friendship during their tenure on the U.S. Supreme Court, despite having vastly different methods of interpreting the Constitution. Viewed as a whole, judges are required to collaborate with civility, even when the topics are difficult and polarizing and even when they may not agree with each other’s perspectives and methods.

Engaging in civics education not only allows judges to model collaborative civility, but it also gives judges an opportunity to contrast the realities of their role from the manner in which their actions are sometimes portrayed to the public. It is an unfortunate reality that the neutrality required for a judicial office can also foster a looming separation between the judiciary branch and the public that prevents an accurate depiction of a judge’s role. However, engaging in civics education allows judges to model behavior while also providing the public with a more accurate representation of the judiciary branch, how it functions, and its goals. It is difficult to expect the public to trust in a judiciary branch that it does not understand, especially when the primary actors in the judiciary branch maintain a careful separation from the public for fear of perceived bias. Judges engage with members of the public every day in the courtroom. Those interactions are opportunities to model civility; however, they do not provide the same opportunities for collaboration that civics education does because judges must maintain a certain distance from the parties to remain a neutral arbiter. Civics education provides judges with an opportunity to shrink the gap between the judiciary branch and the public, but it does so in a way that does not ask or require judges to abdicate their necessary neutrality.

The legal community has both the ability and the obligation to collaborate on facilitating civics education and creating opportunities for that education. Lawyers and judges are both uniquely positioned to promote civics education, highlight how to do so in a civil and collaborative manner, and, in some instances, demonstrate civics in action. The only remaining question is “how?”

A new framework or system is not required. Various organizations and entities have already begun working to increase opportunities for civics education, and it would be remiss to ignore those existing systems. Instead, lawyers and judges can enhance those existing systems by seeking opportunities to join in, whether through direct teaching, engaging in discussions, or finding other methods of support. The key, however, to meaningfully involving the legal community in civics education is collaborative engagement, where members of the legal community are actively participating in the educative process rather than passively agreeing that civics education is necessary.

Through the Cornerstones of Democracy Commission, the American Bar Association (ABA) has highlighted the need for participation in civics education by the legal community. Central to the Commission’s mission is the idea that “the legal profession must lead the way in promoting civics, civility, and collaboration to restore confidence in our democratic institutions, in the judicial system, and to protect the rule of law.” The Commission has already taken many steps to advance that mission. For example, it provides a conversation guide for state, local, practical specialty, and affinity bar associations free of charge, and it is developing, or modifying, programs to model civil discourse on topical issues for civic, professional, and governmental organizations. Civics and civility programming have been, and will be, included at key ABA events throughout the 2022–23 bar year. A communications campaign has been developed and implemented, and the Commission has collaborated closely with both ABA entities and outside organizations to continue developing programming and activities. As an ongoing mission and initiative, the resources provided by the Cornerstones of Democracy Commission continue to be updated and expanded, and many of those resources are available free of charge.

In addition to the Cornerstones of Democracy Commission, across the country, various courts and institutions have established various methods for integrating the legal community in civics education. For example, courthouse learning centers are already established in the Second Circuit, the Eighth Circuit, the Ninth Circuit, and the U.S. District Court of Minnesota. Those centers have “robust programming for all ages ranging from in-depth tours and court observation to Scout badge programs, media and information literacy sessions, and institutes for teachers and homeschool educators.” Not only can attorneys and judges actively participate in the programming available through those centers, but legal community members living in areas without such centers can advocate for their construction in their own local courts. Exact replicas are not needed—the goals of the centers and the programs that they provide can be achieved through various types of programming that meet the needs of the communities in which they are established.

In addition to courthouse learning centers, numerous courts have worked on expanding their community outreach to adults and fostering adult civics education. For many adult Americans, the last opportunity that they had to receive a comprehensive civics education was in high school, if at all, and the depth of that education can vary from state to state and high school to high school. To continue that education, courts have begun creating more opportunities for adults to learn about civics and the American government. For example, in Colorado, Our Courts Colorado provides “a series of practical presentations in English and Spanish that judges and lawyers bring into communities.” In other areas, judges and attorneys have worked together to provide accessible college courses on civics education. Those established curriculums could be modified and implemented for other classes in different locations. In the interest of collaborating to increase civics education, sharing those curriculums among members of the legal community could ease the strain of establishing classes in new areas.

Other courts have worked to increase opportunities for children to receive a more direct education about the judiciary branch. In partnership with the Louisiana Bar Association and the Louisiana District Judges Association, the Louisiana Center for Law and Civic Education has established two programs aimed at providing that direct education: Judges in the Classroom and Lawyers in the Classroom. Through these programs, volunteer lawyers, judges, and educators deliver interactive presentations on a wide variety of civics and law-related topics. Potential volunteers only need to fill out a form to be matched with a local Louisiana classroom that is part of the program, making engagement accessible and simple. Information and updates about that program are available through the program’s ongoing newsletter.

In other courts, annual “court camps” are held for students, such as the Second Circuit’s annual summer camp for middle school students. “Students spend five days at the courthouse interacting with judges, lawyers, court staff, law school students, and law enforcement representatives as they consider careers and learn advocacy skills that they can use in the law and in life.” These types of opportunities are ideal for attorneys or judges who may not have the capacity to commit to large-scale, time-consuming projects. However, the longevity of the commitment in no way lessens an attorney’s or a judge’s impact. Those five days that middle school students spend at court camp could greatly enhance their understanding of the legal field, the judiciary branch, and civics in general. For students who may be just beginning to learn the nuances of American government, having a judge or attorney visit their classroom, or receiving an immersive experience like a court camp, could foster interest in continuing to learn about civics and a desire to continue engaging in the civic components of American society.

Along with creating more student opportunities to engage with the judiciary, other courts have provided targeted learning opportunities for teachers. For example, a number of federal courts offer professional development programs for teachers through teacher institutes. These programs last from half a day to three days, with the goal of enriching classroom teaching about the courts in high schools and middle schools. Many of these programs are scheduled during the summer to provide the greatest level of access to teachers, and, although the curriculum of each program may vary, they generally have teachers “observe court proceedings and debrief with judges and attorneys” and “[l]egal scholars join judges in teaching substantive classes.” The information that teachers receive helps them “incorporate new insights into lesson plans they develop during and after the institutes” and provides “a deeper understanding of the judicial system.” Teachers also receive continuing education credits for their participation, making the programs beneficial for the teachers’ own professional requirements. In essence, teacher institutes operate as a dual system of civics education by providing adult education to teachers while also providing vicarious civics education to the teachers’ students.

Broader efforts have also been implemented by many federal courts through community outreach committees. For example, the Ninth Circuit’s Public Information & Community Outreach Committee is “dedicated solely to improving understanding of and confidence in the federal courts.” The Second Circuit established a circuit-wide steering committee and civics initiative, Justice for All: Courts and the Community Initiative, “to increase public understanding of the role and operations of the courts and bring courts closer to the community.” The Sixth Circuit’s outreach committee implemented Connections: You, Your Courts, Your Democracy, a website that seeks to “[e]ducate and heighten the awareness of judges within the Sixth Circuit on [ ] the extent of the lack of knowledge of civics and the critical role and function of the federal judiciary in our democracy,” “[e]ngage the judges within the Sixth Circuit on the importance of civics education,” and “[p]romote civics education within [the Sixth] [C]ircuit.” The types of resources that these outreach committees provide vary, but the goals of each committee are the same: increasing the public’s understanding of the courts and bridging the gap between the judiciary and the public. For judges wary of engaging in civics education, these committees can be a less direct form of advocacy that still achieves the meaningful result of providing accessible resources on civics education to the community.

Aside from establishing an entire committee, smaller-scale efforts to engage with the community can still have a profound impact. In Oregon, tours are available of the Oregon Supreme Court building, and the information provided in the tours intertwines the history of Oregon’s court system with more general civic knowledge about the role of courts, both generally and in relation to the other government branches. Judges on both the Oregon Supreme Court and the Oregon Court of Appeals also regularly visit high schools and colleges around Oregon to hold oral arguments and discuss the appellate process with students.

A multitude of programming and organizations exist in the legal community to promote civics education engagement, and the examples described above merely scratch the surface of this robust movement. Their very existence highlights the role that attorneys and judges can play in civics education, but these programs can only continue to grow if the legal community continues to advocate for and engage with them. Court camps require volunteers, civics education classes require instructors, and courthouse learning centers require individuals committed to creating, implementing, and leading programs. Even outside of structured programs and organizations, attorneys and judges have opportunities to provide civics education through their behavior, their conversations, and their actions. The opportunities to participate in civics education are endless—but we must choose to participate.

The author would like to thank law clerk Ashley T. Korkeakoski-Sears for her research and assistance.

    The material in all ABA publications is copyrighted and may be reprinted by permission only. Request reprint permission here.

    By Judge Adrienne C. Nelson

    District of Oregon

    Judge Adrienne C. Nelson is a U.S. District Judge for the District of Oregon.