The Invention of Courts

My charter is to introduce the themes that today’s speakers will address and that are explored in greater detail in the Dædalus volume, “The Invention of Courts,” that Linda Greenhouse and I coedited. Because state courts are central to adjudication in the United States, I begin with a photograph of a 1784 courthouse in New London, Connecticut (Figure 1).

The building is still in use; it is one of thousands of courthouses around the country – aiming to respond to a myriad of problems. The obligation to do so comes from constitutions, and Connecticut provides an example. The words from its 1818 Constitution sound familiar because they echo provisions of the Magna Carta: “All courts shall be open, and every person, for an injury done him in his person, property or reputation, shall have remedy by due course of law, and right and justice administered without sale, denial or delay.” The 1819 Alabama Constitution uses almost the same language (“All courts shall be open, and every person, for an injury done him in his lands, goods, person, or reputation, shall have remedy by due course of law, and right and justice administered, without sale, denial, or delay”). Similar provisions can be found in many other state constitutions, from that era and today.

Figure 1: New London County Courthouse, New London, Connecticut, 1784 (relocated in 1839 to the current site). Architect: Isaac Fitch; 1909 addition: Dudley St. Clair Donnelly; 1982 addition: Hirsch and Persch. Photo courtesy of Connecticut Judicial Branch.

Pursuant to such texts, the public gains two kinds of access rights – individuals can file lawsuits in courts and they can watch the proceedings of courts. Thus, judges must welcome both complainants and third parties who are entitled to observe what transpires.

But a reminder is in order. The phrase “every person” did not, in the early part of the nineteenth century, carry the same meaning that we give it now. In that era, white women and blacks of either gender could not, in Connecticut or in Alabama, vote or participate fully in society. Rather, the reference to “every person” having the potential to exercise juridical authority was limited to a subset of persons. Courts were not then the welcoming institutions that we imagine and that we hope them to be now.

Moreover, the relevant courts at the time were state courts, as illustrated by the photograph of a state courthouse, which was one of many such buildings dotting the country’s landscape. In the 1850s, the U.S. federal government owned about fifty buildings outside of Washington, D.C. around the United States; these were marine hospitals and customs houses. None had signs on their front doors reading “United States Court.” At that time, Congress had commissioned some forty federal lower court judges to preside around the United States. They did not have courthouses of their own, but used space in federal buildings such as customs houses or in state and private facilities.

The Civil War marked the change; with the North’s conquest of the South, Congress sought to instantiate a “federal presence” (to borrow the title of Lois Craig’s book) through building new structures and by enforcing new norms across the country. Congress expanded federal courts’ jurisdiction through new provisions on habeas corpus, on federal question jurisdiction, and on civil rights. The Department of Justice was founded in 1870 and, in the decades thereafter, Congress authorized the construction of many more federal buildings – frequently combining courthouses and post offices – across the country. In 1935, the now-iconic U.S. Supreme Court building – promoted by Chief Justice William Howard Taft and designed by architect Cass Gilbert – opened (Figure 2).

Figure 2: Lois Long, The Contemplation of Justice. United States Supreme Court, Washington, D.C., 1935. Photo courtesy of the Collection of the Supreme Court of the United States.

The Neoclassical building was, in many respects, what could be called a fake old building, as this was the era of Art Deco architecture – soon to be joined by Modernism and the International style. The old-fashioned design made it easy to forget that until 1935 the U.S. Supreme Court had been housed in the Capitol. Yet in many ways, having a home of its own for the first time in the 1930s was apt.

During the first part of the twentieth century, under the leadership of Chief Justice Taft, the Supreme Court gained new powers from Congress – to select which cases it would hear by granting discretionary grants of certiorari and to promulgate national rules of procedure. In addition, Congress licensed a body of judges to form a “Judicial Conference” to create policy for the federal courts.

The words that are inscribed on the back of the 1935 Supreme Court building are “Justice, the Guardian of Liberty.” The front façade bears the inscription – visible in the photograph – “Equal Justice Under Law.” Those words were chosen because they fit the space but were not then used much in law; the phrase does not appear in the U.S. Constitution’s text.

Once again, the import then was not what we take the words to mean now. Equality was not the focus of the 1930s’ jurisprudence, as is illustrated by the speech of Chief Justice Charles Evans Hughes when the cornerstone was laid. When speaking about the ambitions that the new building represented, the Chief Justice used the word “liberty” many times but did not reference “equality.” His words reflected attitudes of that era – skeptical of federal government regulation (the New Deal faced many legal challenges) and tolerant of a host of formal inequalities.

This point can be seen by looking at a mural (Figure 3) that was installed behind a judge’s bench in a courtroom in a 1938 federal district courthouse in Aiken, South Carolina. Both the art and the building were funded by the Works Project Administration – the WPA.

Figure 3: Stefan Hirsch, Justice as Protector and Avenger, 1938 (commissioned through the U.S. Treasury’s Section of Fine Arts, 1934–1943). United States Court House (renamed in 1986 the Charles E. Simons Jr. Federal Court House), Aiken, South Carolina. Image courtesy of the U.S. General Services Administration, Public Buildings Service, Fine Arts Collection.

The artist, influenced by Mexican muralists, called this figure “Justice as Protector and Avenger.” The female figure at the center references the Renaissance Virtue Justice. Yet the WPA artist explained that his “figure of ‘Justice’” was “without any of the customary . . . symbolic representations (scale, sword, book . . .).” Rather, the only “allegory” he had permitted himself was “to use the red, white and blue [of the United States flag] for her garments.”

What did others see? A local newspaper objected to the “barefooted mulatto woman wearing bright-hued clothing.” The federal judge in whose courtroom the mural was displayed called it a “monstrosity” – a “profanation of the otherwise perfection” of the courthouse – and wanted it removed. The artist offered to repaint, as he had “intended nothing of the sort.”

A proposed compromise – to “lighten” Justice’s skin color – never took place. The press coverage about the exchanges prompted a national controversy. The National Association for the Advancement of Colored People and artists objected to the condemnation and to the alteration of the art. The denouement was to cover the mural with a tan velvet curtain, seen at the edges of the photograph. In 1938, a figure perceived as “mulatto” could not be permitted to stand as the representation of Justice. The draped wall echoed the limited responses of law; people labeled “mulattos” did not have much protection in courts.

Indeed, in 1938, when the “mulatto” Justice was draped because she was seen as unsightly, another series of WPA murals was placed on the walls of the Ada County Courthouse in Idaho. In the early part of the twenty-first century, a reporter described the scene as showing an “Indian in buckskin . . . on his knees with his hands bound behind his back . . . flanked by a man holding a rifle and another armed man holding the end of a noose dangling from a tree.”

No objections to the display were recorded at the time, but toward the end of the twentieth century, a judge in Idaho concluded that the imagery was offensive and ordered that it be covered – with flags of the state and of the United States. In 2006, questions were raised about whether to continue to hide the murals or paint over them. The state legislature, in consultation with Indian tribes, decided instead that the murals should remain on view – framed by official, educational interpretive signs to explain that the picture reflected “the values” of that time.

But much has changed since then. In the 1950s, Brown v. Board of Education overturned school segregation laws; in the 1970s, Reed v. Reed was a watershed for women’s equality, as the Court applied the Fourteenth Amendment’s Equal Protection guarantees to women. More recently, United States v. Windsor has become a shorthand for LGBT equality, reflecting new understandings in law and in culture about sex, gender, marriage, and families. (And as Jamal Greene will discuss, other cases – such as Dred Scott – have become part of an “anti-canon,” posited as exceptions rather than as exemplary of their times.)

With these many changes, the words above the U.S. Supreme Court’s front steps – “Equal Justice Under Law” – gained a new resonance. Although not used in law before 1935, this phrase has since appeared hundreds of times in judges’ decisions and now graces the cover of some of the Court’s publications as its tagline.

In short, the reason to reflect on two hundred years of courts in the United States is because it is all too easy to think that what courts represent now – equal justice for “everyone” – was what they offered all along. But the transformation of courts occurred as the result of popular mobilization and sharp conflicts over norms – on battlefields, in elections, and in litigation.

Another way to capture the changes is to look at the number of cases brought to courts. At the beginning of the twentieth century, fewer than thirty thousand cases were filed, and more were criminal than civil. By the end of the twentieth century, more than three hundred thousand cases had been filed, and civil filings far outnumbered criminal cases.

The number of judgeships provides another metric. At the beginning of the twentieth century, Congress had authorized about one hundred judgeships; by that century’s end, more than 850 slots were provided for life-tenured judges. Returning to buildings, today’s largest federal courthouse (Figure 4) is the twenty-nine-story Thomas F. Eagleton United States Courthouse in St. Louis, Missouri.

Figure 4: Thomas F. Eagleton Federal Courthouse, St. Louis, Missouri. Architects: Hellmuth, Obata + Kassabaum, Inc., 2000. Photographer: Magistrate Judge David D. Noce, Eastern District of Missouri, 2006. Photo courtesy of the photographer.

The hundreds of new, purpose-built courthouses reflect aspirations that courts be accessible to all of humanity. As you will hear from Chief Judge Lippman, the filings in the federal courts are but a tiny fraction of the cases brought to state court – where more than 100 million claims (civil, criminal, family, juvenile, and traffic) are filed annually. The volume of cases marks the success of courts as institutions understood to be places to which many in distress can turn. (The contradictory accounts in popular discourses about courts is the topic of Susan Silbey’s discussion.)

The buildings are one way to make material the political obligation that governments permit the public to observe their work as adjudicators. The theory behind that obligation reflects Jeremy Bentham’s commitment to “publicity” – that observation is a key method of disciplining the authority of government, judges included. Publicity is also a tool of education, enabling a reciprocal relationship between audience and disputants.

The judicial system could thus be viewed as a thriving part of democratic interactions in the United States, where “everyone” – consumers and manufacturers, employees and employers, prisoners and prison officials – is entitled to egalitarian and dignified treatment under the law. Courts are venues in which the public can understand the challenges of applying law to fact, and lawsuits provide insights into the debates about and needs for new norms.

Of course, these are aspirational goals. In practice, many court systems fall far short of what is hoped from them – as revelations about the municipal courts in Ferguson, Missouri, and elsewhere make plain. Courts can be mills in which to prosecute individuals and trap them into a cycle of civil debt payments. And courts can fail to protect criminal defendants’ rights, as Carol Steiker will discuss. But with publicity comes the possibility of learning about such practices of unfairness and the potential for oversight and for interventions – aiming to try to make good on promises of “equal justice under law.”

Thus, one narrative of the legal history of the twentieth century is the invention of courts. What we think of as intrinsic in courts today – equality, fairness, openness, independent jurists – are artifacts of relatively recent vintage, produced by political and social movements contesting democracy’s obligations. The challenges of achieving those aims remain, and Chief Judge Lippman will detail some of the many efforts underway to enable courts to do that work.

Yet another competing narrative is coming to the fore – reshaping the landscape and practices of dispute resolution and moving many decisions offscreen to private exchanges in courts or to other venues altogether. A first example comes from a visit to the website for the U.S. federal courts; in 2014, if one clicked on a link to learn about “how to use” the courts, one would find a text box message, encouraging users try alternative methods of resolving their disputes, explained as preferable so as “to avoid the expense and delay of having a trial.” Those concerns about costs are readily understandable, as are many other criticisms of courts.

Yet the question is how to take account of such costs and criticisms while remaining committed to efforts to ensure equality, fairness, openness, and judicial independence. How do law and policy keep the public engaged with and supportive of the public services that courts provide? The problem with the privatization that reformats court-based procedures and turns judges into settlers and managers is that it obscures the services that courts can provide and limits the capacity to learn when failures occur. In the federal system, about one of every hundred civil cases filed in the federal system begins a trial. Because most of the settlement and management exchanges happen in chambers, the public’s access to observe exchanges among litigants and judges diminishes.

Another method of privatization is to insist that members of the public use arbitration in lieu of courts, while not insisting that such arbitral proceedings be open to the public. As is likely familiar, many providers of various goods and services require that, when we purchase a product or apply for a job, we waive our rights to use courts for disputes related to those products or jobs and instead must use a dispute resolution system designated by the provider.

For example, almost all the wireless phone services require such waivers. Even if some permit use of small-claims court, all ban collective redress – whether as a class action in court or in arbitration. In 2011, in AT&T Mobility v. Concepcion, the United States Supreme Court concluded (five to four) that such bans were enforceable under an expansive interpretation of a 1925 federal statute, designed at the time to enable merchants to enforce clauses in their custom-made contracts providing for arbitration.

To conceive of the documents that today come with credit cards and cell phones or on job application forms as “contracts” is a mistake, just as to characterize arbitration as the output of “private ordering” is misguided. Contracts are bargained-for agreements. Although I tried, my wireless service provider did not permit me to alter its terms. Yet, on its website, the wireless service states that it can unilaterally “change any terms, conditions, rates, fees, expenses or charges regarding . . . Services at any time.”

Millions of consumers and employees are subject to such provisions. Thus, thousands of claims that might have been pursued collectively can only be brought single-file in closed arbitration hearings (or sometimes in small claims court). The theory is that arbitration is “speedy” and “efficient” – and thus a better way to vindicate rights than courts.

But the mass production of arbitration clauses has not resulted in a mass of arbitrations. We have some data because California and a few other states require reporting by organizations offering arbitration within their borders. I reviewed data from 2009 to 2014 provided by the American Arbitration Association on claims filed by individual consumers in proceedings against AT&T. I chose that provider because it was the purveyor of the class action ban enforced by the Supreme Court in 2011. I found 134 individual consumer claims – or about 27 per year during those five years. And during that time, between 85 and 120 million customers used that wireless service.

The U.S. Supreme Court’s law takes those kinds of cases out of state, as well as federal, courts. But as you will hear from Chief Judge Lippman, demand remains intense stateside. As I noted, when counting all the kinds of cases (civil and criminal, as well as traffic, juvenile, and family included), some one hundred million cases begin in state courts each year around the country. That volume is both a remarkable tribute to courts, perceived to be a government service available to so many, as well as an enormous challenge for courts. These numbers are also a source of concern, as many people are brought too frequently to the courts – drawn in as defendants in criminal and civil cases.

In short, democracy has not only changed courts – radically – by reinventing courts as belonging to “everyone”; democracy also challenges adjudication deeply. Providing adequate services to the millions seeking help is an enormous burden. In 2011, New York reported 2.3 million people in civil litigation without lawyers; in 2009, California counted 4.3 million civil litigants without lawyers.

Figure 5: William Clift, Crack, Jury Chairs, Warren County Courthouse, Warrenton, Missouri, 1974–1976. Photo courtesy of the photographer.

The photograph in Figure 5, taken by William Clift, marks the problem of resources. Shown is the historic Warren County Courthouse in Missouri. The building was forty-five by fifty-five feet and built in 1870. A century later, the courthouse gained a designation in the National Register of Historic Places. But by then, the crack in the wall pointed to the building’s deteriorating condition. After a lawyer brought a class action lawsuit alleging that the courthouse was physically inaccessible for those with handicaps and therefore not compliant with the Americans with Disabilities Act, the courthouse was replaced.

Built in its stead was a new three-story, 54,000-square-foot “justice center,” which not only had more courtrooms and accessibility but also a jail with about a hundred beds. Tracking the evolution of courthouse construction over the centuries is thus one way to gain insights into the changing demands placed on courts. The lawsuit that prompted the demolition reflects important new anti-discrimination laws, as well as the development of new procedures such as the class action, just as the expanded jail space marks the precipitous growth in prison populations.

A final introductory image was also taken by William Clift. This 1976 photograph (Figure 6) shows at its center the domed Old St. Louis Courthouse, where Dred and Harriet Scott sought to secure their freedom. Although a Missouri jury had ordered the Scotts free in 1850, the Missouri Supreme Court reversed the decision. Likewise, in 1857 the United States Supreme Court held that, as slaves, the Scotts could not be heard in court to challenge that ruling.

Figure 6: William Clift, Reflection, Old St. Louis County Courthouse, St. Louis, Missouri. Image photographed in 1976 in conjunction with the Seagram Court House Project. Photo courtesy of the photographer.

The Old St. Louis Courthouse was also the site of a lawsuit by Virginia Minor, seeking to protect her right to vote. In 1872, she argued that the Privileges and Immunities Clause of the recently enacted Fourteenth Amendment required the state to give women access to the voting booth. But in its 1875 ruling in Minor v. Happersett, the U.S. Supreme Court concluded that, although a citizen, Minor had no federal right to vote.

The Old Courthouse is a testament to the injustices promulgated in the name of the law. Its picture makes plain that our discussion is not predicated on a view that courts are intrinsically just. Rather, courts are contingent institutions, embedded in and reflective of the political orders that empower them. Tonight’s exchange, and the Dædalus volume on which it is based, aims to explore what public courts can offer, the challenges they face, and the failures that have occurred.

Litigation provides opportunities to contest law’s rules and – if coupled with social movements – to bring about changes in the governing norms. Once again, buildings track the changes. In the 1930s, the Old St. Louis Courthouse was abandoned in favor of a new Civil Courts Building. In 1940, it was rescued for restoration and named a national monument. Today it is a museum. While appropriate to mark its history, turning this courthouse into a museum may portend the trajectory facing current courthouses – unless the shift toward privatizing dispute resolution is reversed.

The large commercial structure reflecting the Old Courthouse in Figure 6 is a multi-use commercial space that was known in the 1970s as the Equitable Life Building. Behind the Old Courthouse is the former regional headquarters of the American Arbitration Association. The flat glass of the International-style skyscraper lends the appearance of a court subsumed by the corporate structures that surround it.

It is the importance of the state courts that I would like to discuss today; our federal courts are quite wonderful, but they represent a minuscule part of what goes on in courthouses around the country. Let me start off by explaining what purpose I believe courts serve today in our society and then segue into an issue that I think is the greatest threat to the legitimacy of our courts and our system of justice. Today’s courts are the emergency room for society’s ailments and illnesses, whether they be eviction, foreclosure, drug crime, family dysfunction, consumer credit cases, domestic violence, or human trafficking. This is particularly true in the state courts where, as Judith indicated so clearly, 98 percent of court cases in our country are filed. The disproportionate media attention afforded to federal courts suggests that they are where most people come into contact with the justice system, but this is just not the case: the average person develops a relationship with the concept of justice in our state courts. The courtroom is the one place that anyone – rich, poor, or in between – ought to be able to get equal justice, wherein each party is treated the same by a neutral arbiter of the dispute.

The concept of equal justice is embedded in our standing laws and in our founding principles. Yet in our country today, there is a huge justice gap between the finite legal resources available and the desperate need for legal services by the poor, the vulnerable, and people of modest means. This gap limits public access to the courts and to justice: the wealthy can afford the best legal representation imaginable; the poor and people of limited means cannot afford a lawyer at all. How has this been allowed to happen? First of all, the recent global economic crisis has caused many people to fall off the financial cliff, destroying their savings and often tearing apart their families. Exacerbating this problem is the fact that funding for lawyers that can help poor people and people of modest means has been reduced in Washington. The funding of the Legal Services Corporation, which is the primary federal funder of legal services for the poor, was cut dramatically, and it now operates at a limited capacity. IOLTA (Interest on Lawyers’ Trust Accounts) funds – which come from the gained interest on the escrow accounts that lawyers hold for their clients – also help fund legal services for the poor, but they, too, have been drastically reduced because of the poor economy.

And the real heart of the problem is that civil legal services for the poor are distinguished from criminal legal services. In the United States, when someone’s liberty is at stake in a criminal case, he or she has a constitutional right to representation. We all know about “Gideon’s trumpet” – the famous case of Gideon v. Wainwright, in which the United States Supreme Court determined that those in danger of having their liberty taken away from them are entitled to a lawyer. That is not the case in civil matters. You may be fighting for the necessities of life – the roof over your head, your personal safety, the well-being of your family, your livelihood – but you are not entitled to a civil lawyer in the United States of America. And while we know Gideon is a seminal case of the Supreme Court, it has not resulted in a perfect system, as our subsequent speakers will detail. Even the availability of lawyers for criminal cases is very uneven. But on the civil side, the situation is much worse. In New York during this terrible economic crisis, eight out of nine people that came to the Legal Aid Society, the oldest legal services entity in the United States, for help with civil legal problems were turned away because there were not enough resources for their representation. Last year, an estimated 2.3 million people came into the New York state courts without legal representation.

What could undermine the justice system more than this lack of a level playing field? If we cannot ensure equal justice – even in this vast state court system, which is the one place where we hold out the hope that all of us, no matter our station in life, can pursue it – then we might as well close the courthouse doors. Our entire system of justice, our system of government, would be fundamentally broken. So what do we do about it? We are trying to reprioritize what is truly essential in society, and those of us that believe that courts, judges, and lawyers are a bastion of equal justice also believe that legal representation for those who cannot afford it is as important to a society as housing, hospitals, and schools. We do not respond to a faltering economy by closing our children’s schools, by turning away the sick from our hospitals. To do so would be to admit our failure as a society. And we believe that to deprive people of legal representation in matters involving the essentials of life is just as shortsighted and unconscionable. In order to reprioritize representation for all, we must educate and advocate for legal services for the poor.

In New York, we have set public hearings around the state in order to show the public what legal services do for people in need. We do not simply insist that the poor need lawyers and that helping the poor is the right thing to do. Unfortunately, that does not work. Instead, we have taken the counterintuitive approach of inviting landlords, the heads of large businesses and hospitals, and those in the real estate industry – people who you might not expect to advocate for legal services for the poor – to proclaim that this is, in fact, the best investment that society can make. They spread the message that for every dollar invested in legal services for the poor, five to six dollars are returned to the state in reduced incarceration costs, reduced social-services costs, and federal funding available for other uses. And judicial leadership is critical in trying to get this message across. It is the constitutional mission of the judiciary to foster equal justice. If we do not, who will? That is why, last year, the New York judiciary put $70 million in its budget for grants for legal-services organizations. To give you some sense of context, the Legal Services Corporation gets $360 million per year to distribute between all fifty states. We in New York prioritize this funding because it is not tangential to our identity; it is fundamental to the judiciary’s role. We must show that we stand for something. In making accessibility of legal services central to the judiciary’s mission, we are stating that providing equal justice is the one meaningful contribution of the courts.

However, with all of that said, there is just not enough money to meet the need of people seeking civil legal services. So we require also the voluntary pro bono efforts of the members of the bar to give their time for free to help people fight for the essentials of life. Lawyer jokes notwithstanding, this is a noble profession. From time immemorial, lawyers have helped people. It is unacceptable to have a monopoly on legal services and use that monopoly only to feather our own nests and serve our own economic interests. Lawyers are supposed to give back and help people in need. The judiciary, as the legal regulator of the profession and the gatekeeper for bar admission, should be leading the way and pushing the envelope in inspiring lawyers to aspire to the highest principles of their profession, not only to their own economic gain. So our job also serves to promote public trust and confidence in the judiciary’s commitment to the public good.

To this end we have been reaching out to constituencies of lawyers that have not historically done much pro bono work. Baby boomers who are starting to slow down their practices should now be doing voluntary pro bono work for the poor. We now require aspiring law students in New York to give fifty hours of pro bono legal services to the poor before they can be admitted to the bar. The theory behind this is that if you want to be a lawyer in our state, you must embrace the core values of our profession, which first and foremost include service to others. We also have a pro bono scholars program that lets law students take the bar early if they give their last term over to pro bono work. We require lawyers to report their pro bono work to the courts to let us know how they are doing.

There are many efforts underway serving the mission of promoting equal access to justice. These include increasing public funding, encouraging pro bono work, and new ideas like having nonlawyers help promote equal justice. Where does all this lead? I think we are already changing the public dialogue and creating new norms. Years ago, before Gideon, if we asked whether someone whose liberty is at stake requires a lawyer, many would have responded with uncertainty. Today, most everyone would say definitely. We want to get to the point where if we were to ask whether people whose essentials of life are at stake in a civil trial need a lawyer, anyone and everyone would respond absolutely. We want to make the ideal of equal justice a reality. We think that the judiciary, the profession, and academia all have a major role in this effort, so we want to encourage an evolving partnership between these three players. Together, we can change the dialogue and get to the day when, just as we provide for representation in criminal cases, we provide for representation for everyone seeking to protect life fundamentals such as housing, education, and safety.

In some ways my talk is going to be a version of “be careful what you wish for.” Chief Judge Lippman says he only wishes there were a civil Gideon. Clarence Earl Gideon is the thief whose conviction was overturned after his landmark case in 1963 – Gideon v. Wainwright – in which the Supreme Court acknowledged that attorneys are “necessities, not luxuries” (in the Supreme Court’s words), at least in criminal cases. And for a two-bit thief, Clarence Gideon has a pretty high-falutin’ epitaph on his gravestone: “Each era finds an improvement in law for the benefit of mankind.” Certainly Gideon was an improvement, as there was no constitutional right to have a lawyer in criminal cases until 1963. Henry Fonda played Clarence Earl Gideon in the iconic film adapted from the book by Tony Lewis, Gideon’s Trumpet. Clarence Earl Gideon died in 1972. Tony Lewis, the author of Gideon’s Trumpet, died just last year on Gideon’s fiftieth anniversary. Sadly, the triumphant story of Gideon died long before that.

On every significant anniversary of Gideon v. Wainwright in my thirty-year career in law, there’s been hand-wringing about how far from Gideon’s promise we are. I could spend my entire allotment of time telling you horror stories about incompetent and unprepared attorneys, ridiculous caseloads, inadequate resources, and defendants railroaded and even erroneously convicted and sentenced to death. But instead of sharing those stories, I will just say that an unlikely group of champions has recently arisen to acknowledge just how terrible the situation is. The nation’s chief prosecutor, Attorney General Eric Holder, has declared that the United States’ indigent defense system is in crisis. He recently joined a New York class-action lawsuit that is suing Governor Andrew Cuomo and the state of New York to get the state to take over the provision of indigent defense services in criminal cases, because the counties are doing such a terrible job. Moreover, many of you may not know this, but the Koch brothers have recently given a multimillion dollar gift to the National Association of Criminal Defense Lawyers (NACDL) to promote indigent defense services for the poor, arguing that it is a terrible black eye to American liberty that poor people in criminal cases are treated so shabbily. The Koch brothers are quite a departure from the usual champions of indigent defense services, which tells you something about how rotten the situation has become.

Why is it so terrible? Why has it proven so difficult in more than fifty years to make good on the promise of Gideon, the constitutional promise so stirringly celebrated in book and film? The triumphal story is simple, but the story of failure is more complex. We have fifty states and the federal system and, as you know, criminal justice is meted out through local systems, not just a statewide or federal system; so many counties and localities are in charge of the provision of indigent defense services. Gideon has therefore been enforced in an inconsistent and piecemeal fashion. I will briefly survey what I think are the four main reasons for this failure.

The most significant problem is, of course, money – inadequate funding. In one of my favorite cartoons, a lawyer says, “You have a pretty good case, Mr. Pitkin. How much justice can you afford?” We are not supposed to think that justice is something that money can buy, but clearly it is, and the underfunding of indigent criminal defense is absolutely endemic in the United States. The reason for that is simple. The right acknowledged by the Supreme Court in Gideon is unlike most of the other rights in the Constitution, which are negative rights – rights preventing the government from doing something to you – rather than a positive right that demands the government give something to you. For Gideon to be realized, it has to be funded, making it a positive right. But, as Alexander Bickel famously said, the courts are the least dangerous branch of government because they control neither Army nor purse – meaning the courts do not have the power to order a state to spend a certain amount of money on indigent defense services.

Thus, the primary responsibility for paying for lawyers for the poor falls to state legislatures and – in states like New York where there is no statewide system for the provision of indigent defense services in criminal cases – to individual counties. States and counties have a wide variety of ways of meeting this obligation, including statewide public defenders who are funded by the state, county attorneys who are paid (often very low) hourly rates, and, in some counties, an auction system in which the bidder willing to be compensated the least gets to represent indigent defendants in court. However states choose to handle the load, chronic underfunding, which everyone acknowledges, leads to a host of problems. The first of these is astronomically high caseloads. When I say astronomically high, I think of Dade County, which covers Miami, Florida: in this county alone, it is typical for a felony public defender to have five hundred cases per year and for a misdemeanor public defender to handle more than two thousand cases per year. That is simply a ridiculous number of cases for lawyers to try to cover; and, indeed, they cannot. In fact, here in New York, in some of the hearings about New York’s indigent defense provision, public defenders were actually not ashamed to say that they triage: they pick the cases that they think might go to trial or the ones in which they believe they could do some good, and they devote their time exclusively to them. Public defenders simply cannot give the kind of representation that they are supposed to give in all of the cases that they are assigned.

High caseloads make it impossible for competent lawyers to perform adequately even when they want to, but it is also very hard to attract good lawyers or to retain experienced lawyers when salaries are very low. This is partially because indigent defense services are a kind of welfare system. It is very unpopular to provide welfare for the poor, but it is even more unpopular to provide welfare for poor people charged with crimes. It is one of the least popular things for legislatures to do even in Democratic Massachusetts, where I am from and where I serve on the board of the statewide public defender. It was recently proposed just last year by our Democratic legislature that we put indigent defense services in Massachusetts out for low bid. Luckily the proposal for this system, which has shown itself to work terribly in places like Alabama and Mississippi, did not even make it to the floor; but that it was proposed at all in the Massachusetts legislature tells you something about the state of funding.

But money isn’t everything. The second issue is independence: even with adequate funding, public defenders have to be independent and unfortunately, in many parts of the country, public defenders run for office and make promises to their constituencies. One public defender running for office in Nebraska stated in a campaign interview that he manages the office as though the taxpayers are shareholders, and that he promises to above all not spend too much money. What platform do you think public defenders who run for office run on? “I will spend less of your money representing poor criminals” is a good approximation of their campaigns. Even when public defenders are not themselves elected, they often must report to elected judges who want to keep costs low and cases moving along, so they lack the independence that they really need. In sum, providers of indigent defense services face serious institutional impediments such as lack of independence from voters or judges, or from the need to bid as low as possible to keep contracts.

The Supreme Court has said that the right to a lawyer includes the right to a minimally adequate lawyer; this is called effective assistance of counsel. So you might think that this would ensure the adequacy of indigent defense services. Unfortunately, the Supreme Court held in Strickland v. Washington that the standard for ineffective assistance of counsel is a daunting one for defendants to meet. They have to show a high level of deficiency, and they have to show the existence of “prejudice” – that is, they have to prove that their case would likely have come out the other way had their counsel been adequate. So often, in finding that the defendant is most likely guilty anyway, judges give a pass to some truly egregious behavior on the part of their lawyers. I hate to say this, but there have been multiple cases where lawyers sleep through trials. They are common enough that they have a name: “sleeping lawyer cases.” There was one death penalty case in which the defendant’s lawyer fell asleep while the prosecutor was cross-examining his client. The defendant, reasonably enough, said on appeal, “You’ve got to overturn my conviction and death sentence, because my lawyer slept through the cross-examination.” A federal appeals court upheld the conviction and sentence because, as they said, it wasn’t a very long cross-examination and the lawyer woke up by the end. So, no problem – no ineffective assistance of counsel there. This example makes perfectly clear that the availability of legal remedies for ineffective assistance of counsel is slight.

And finally, the fourth problem preventing the realization of Gideon’s promise is the incredible upsurge in plea bargaining. At the same time as federal cases are falling off and state cases are increasing in number, both federal and state cases increasingly end in guilty pleas before ever going to trial. In fact, fewer than 5 percent of criminal cases are disposed of by trial. More than ninety-five out of every hundred plead guilty. There is never a trial; the government’s case is never put to the test. In essence, the plea bargain is like Harry Potter’s invisibility cloak. The public cannot see what went on before the plea is entered. You do not see whether the lawyer did any investigation. It does not matter what legal arguments the lawyer made. You do not know whether the lawyer was prepared to defend the client. All of that gets washed out by the plea, and the defendant waives the right to appeal anything except misinformation about the plea or an illegal sentence. So we have very little information about what is going on in these cases, and if the case ends in a plea, defendants do not have any ability to challenge the adequacy of the representation they were given.

This is an extraordinarily large problem and it will take an extraordinarily concerted effort from the judiciary, from lawyers, and from concerned citizens to make a dent in it. As a former public defender and now as a board member of a statewide public defender system, I can say that public defenders and indigent defense lawyers truly stand on the front lines of justice, monitoring the most coercive powers that our state uses. Until the justice system enables them to do this critical job adequately, this issue should concern us all.

You have heard from Judith Resnik about the invention of courts as egalitarian institutions and their recent metamorphosis; from Chief Judge Lippman about the challenges of providing access to justice in the civil courts; and from Carol Steiker about how the promise of Gideon v. Wainwright remains an aspiration rather than a reality. My task is to talk about what the American people make of this: what they think is happening in the courts and the law and how they talk about it. More specifically, I will report from a sociological perspective on interpretations – which turn out to be quite contradictory, I might add – of the role of courts from two different kinds of data. First I will talk about polling data and then I will talk about data we collected through conversations with citizens. Finally, I will try to explain how these paradoxical accounts sustain, rather than undermine, the power of courts in American culture by combining both aspirations for disinterested, objective, rule-bound decision making with quite realistic understandings of the practical day-to-day constraints, compromises, and shortfalls that lead to the failure of these aspirations.

First I need to explain what I mean by the word culture. This is a very difficult word whose growing colloquial usage has only contributed to the confusion. In the media and in the popular vernacular, we have “safety culture,” “youth culture,” “drug culture,” “legal culture.” Often, people talk about culture as if it were simply people’s personal attitudes and opinions, or what people feel, or some individual expression we enact in public. Sociologists and anthropologists, who take culture as their subject, have something much more complicated in mind when they use the word. According to the academic understanding, we live in a system of signs and symbolic representations that have associated practices, and culture refers to the interactions and connections between these symbols. It is through culture that we make sense of what we say and do in the context of society. A symbol, a word, a phrase can be understood and can communicate only because it is part of the structured network of signs (and associated meanings) that we exchange in our daily interactions.

My task for this volume of Dædalus was to show which representations of courts and law circulate in American popular culture. In general, the public’s view of the courts is actually quite favorable. What we heard from Chief Judge Lippman and from Carol Steiker is what legal professionals know, but it is not what the public tends to think. Public opinion polls on the judiciary regularly report strong confidence in the courts, alongside weaker expressions of what we might call direct approval – confidence and approval being different things. Public opinion surveys regularly describe a deep reservoir of goodwill and diffuse support for the courts, especially the United States Supreme Court. Time and again, polls have shown that Americans have more confidence in the court than they do in either the President or Congress. Most Americans think that the court is exercising just about the right amount of political power and, more often than not, they think the court is doing a good job.

Recently, however, the polls have begun to tell a very different story, which has spurred some of the widespread concern within the judiciary and among others in the legal community that the authority and legitimacy of the courts may be threatened. A July 2013 Gallup poll suggested that approval for the U.S. judiciary had dipped to an all-time low: just 43 percent of the respondents said that they approved of the way the court was handling its job. Approval ratings are currently at just half of their historic levels. Every year before 2007, somewhere between 73 and 100 percent of the American people approved of the courts; starting in 2007, the number began to drop. Yet, even with this decline, we should note that the courts’ rating is still much healthier than that of Congress or the President.

Some observers have interpreted these recent polls as an indication of the fragility of public support for the legal system. I, on the other hand, think that the polling results show the need for more and different data. In a moment, I will show you what different data look like. But first, it does bear asking: why did the numbers change so radically in the last few years? The polls suggest that people are not happy with either the current Supreme Court or with local courts. However, there is also a technical social science issue at play here. It turns out that the polls started wording the questions differently, meaning that this is a matter of people’s cultural interpretation of language. That is, from 1973 to 2011, the public was asked, “How much confidence do you have in the courts?” In the polls after 2011 they were asked, “Do you approve of what the court is doing?” These questions are not equivalent, and we need to understand the difference between them. Without further conversation with poll respondents, we cannot know how they understood the terms in the questions. Perhaps they understood confidence to be a reflection of deeper long-term commitments and approval to be something more specific, time-bound, and responsive to particular cases or issues. Without locating the poll responses within a framework of concepts, we cannot know what any particular answer means.

So how do we find out about what people really think and how they interpret the role of the courts in their lives? Well, some years ago my colleagues and I specifically set out to learn what Americans thought about the law and the courts: when the law was relevant to their lives and when it was not, what their expectations were for legal encounters and what actually happened. We did this by interviewing a random sample of 430 people in one state. It was a good sample in that it reproduced that state’s distribution of income, education, and race. We offered them compensation for speaking with us about their lives for one to two hours. We did not ask them about the law and courts. We simply asked them about their lives: where they lived, how long they had lived there, what they did and did not like about it, how they were similar or dissimilar to their neighbors. We had a long conversation in which people could really show us who they were. Then we asked them to tell us about problems that they might have encountered in their communities and what they did about the problems they named.

The things we asked about included neighborhood problems, family problems, and issues with property taxes, schools, and crime. The respondents told us about just under six thousand events; in about 14 percent of these, the respondents turned to the law for recourse. In telling these stories, people appraised the value of the court system and what it achieves. They talked about what enhanced and what limited the courts’ capacity to act. So we analyzed these stories and found that they often returned to a few similar themes, which we grouped into three distinct stories about the law. In one narrative, the law is described as a bureaucracy; in another, it is described as a game; in the third, it is a force overwhelming life – something to avoid or just find a way to get around or resist.

In the narrative of law-as-bureaucracy, people most often described themselves as standing “before the law,” waiting for justice to be done. The legal system is described as something different from everyday life, as rule-bound, objective decision-making, executed by disinterested and distant actors. Those who described the legal system this way told us that they often felt that their expectations of the system were met, but they tended to turn to the law only with a general problem that might affect their community as a whole – not something personal.

In the second story model – that of the legal system as a game – people described themselves as acting “with the law,” using it to their advantage. In this account, people went to the law to pursue self-interest in ways that are not always permissible in ordinary civil life, and they used it to solve all sorts of problems. This process was an extension of everyday life, not separate from it. They did not feel a bureaucratic remove or believe that the power of the law was inaccessibly located in courthouses and leather-bound books. Rather, these respondents astutely and sometimes playfully looked for opportunities to use the legal system to their benefit. Theirs is a system that ends problems, in which the outcome is never guaranteed, but rather must be won. The legal system is objective in that its results are contingent upon the skill of the player. Those who espoused this version of the legal system said that the most important resource for making the law work is lawyers who play the game with skill and experience.

Those who shared with us the third and final story did not think the law was objective, nor did they have the resources to play it like a game: for them, it was just about power. Such a big, powerful institution promises all sorts of rights that it cannot really practically protect. It is unpredictable, like a giant who could run amok at any time. These respondents found that the law colonizes everyday life, so they may resist the law, finding clever ways around it.

So what is the point? These stories locate citizens variously as supplicants, as engaged players, or as inventive resistors. It is important to note that these three stories were not told by distinct types of people. One person can tell all three stories. How can this be? Well, the law is embedded in American society. It is everywhere: it is depicted in television and films; it regulates the packaging of our food. The law creates access for people. The law organizes our lives. This is how people experience the law – it’s not just courthouses. So in the end the stories describe the law in the United States as both a god and a gimmick – these two conceptions form the warp and weft of the fabric of legality itself. This contradiction protects the system because any criticism has already been heard – it is part of the system’s totality, rather than a flaw or imperfection. But, to conclude, change is still important, and the difference between the ideal and the reality is exactly the place where things change and get better – the space in which the kinds of proposals we’ve just heard from Carol and from Chief Judge Lippman can be made.

My essay in the “Invention of Courts” Dædalus issue is about the role that courts, and in particular the Supreme Court of the United States, can play in constructing certain narratives of historical continuity. I want to suggest that these narratives are important to overcoming a certain kind of cognitive dissonance about our history. I will begin with an anecdote that captures something of the way in which we go about constructing our history.

The seat of Southeastern Ohio’s Harrison County is a town called Cadiz. It was the home of George Custer, who, of course, is famous for many reasons, including for his help securing the surrender of Robert E. Lee at Appomattox. It was also home to the law office of Edwin Stanton, who was Abraham Lincoln’s Secretary of War. In front of the Harrison County Courthouse in Cadiz you will find a statue of another significant resident: John Bingham, who wrote the most significant words in the Constitution; namely,the privileges and immunities clause, the equal protection clause, and the due process clause of the Fourteenth Amendment. He was also a legendary orator in the U.S. Senate and the prosecutor of Lincoln’s assassins. But the town of Cadiz is far and away better known as the birthplace of Rhett Butler, and many passers-through and tourists think the statue of John Bingham is actually an image of Clark Gable. Now, if we consider Bingham and Gone with the Wind side by side, it is clear which holds a more prominent place within our culture. As David Blight has described in his masterful book, Race and Reunion, efforts to refigure the Civil War and its aftermath as a battle among moral equals – and Reconstruction in particular as a kind of ill-conceived power grab by carpetbaggers from the North and their scalawag allies in the South – was quite a deliberate effort on the part of members of the Lost Cause movement, for whom Gone with the Wind, with its glorification of Klan violence in response to Reconstruction, is a central and defining work of art.

Now, my essay in the issue argues that the message of moral continuity with the past, which the Lost Cause movement sought to promote, also lies beneath a prominent feature of American constitutional argument and especially American constitutional argument in the courts. We tend to structure constitutional arguments around a reference point: a set of what I and others have called anticanonical cases. The most prominent examples of anticanonical cases, one of which has been mentioned, are Dred Scott v. Sandford, Plessy v. Ferguson, and Lochner v. New York. These cases share a consensus within the mainstream community of present-day lawyers and judges: that they were wrong the day they were decided. Dred Scott v. Sandford declared African slaves and their descendants to be incapable of American citizenship and also held that slavery could not be prohibited in federal territories, Plessy v. Ferguson upheld a law segregating rail cars by race, and Lochner v. New York invalidated a New York maximum-hours law for bakers.

Now, there are many cases in U.S. constitutional law that people believe were wrongly decided. What makes these three cases unique is that they tend to be used across the ideological spectrum to argue that some particular proposition in modern constitutional argument is wrong. So, for example, originalism (the idea that the Constitution’s meaning is unchangeable since its inception), which tends to be promoted on the ideological right, and substantive due process, which tends to be promoted on the ideological left, are both tied to Dred Scott v. Sandford. Judicial activism, a favorite charge of the right, and insensitive neoliberalism, a favorite charge of the left, are both associated with Lochner v. New York. Legal formalism, criticized fairly often by the left, and race-conscious governmental action, which over the last thirty years has been most prominently criticized by the right, are both associated with Plessy v. Ferguson.

The ideological promiscuity of these cases – the fact that they are able to travel across the political spectrum – tends to give them staying power. And the tendency to frame them as anticanonical aberrations – as the worst of the worst – situates them as products of bad judges rather than as genuine reflections of their times. By holding them out as prime examples of how to err in constitutional decision-making, we position their authors – the judges – as rogues rather than as representatives of significant currents of proslavery, prosegregation, and antilabor ideology. So in a sense, by underscoring the errors that we find in these cases, we end up alienating those courts from the culture that produced them. The upshot of that artificial separation is that we end up alienating ourselves from the culture that these cases represented as well. We, all of us, are the sanctified people to whom the Constitution’s preamble refers. We are the people who keep faith with the ideals of the Constitution’s framers. On the other hand, we want to believe that they, meaning the judges who decided these anticanonical cases, sought to tarnish those ideals. This kind of cognitive distancing resonates with the revisionism of the Lost Cause movement; it revises history in order to remove our collective discomfort with it.

The result is that we lose sight of the many ways in which our current moral progress has been shaped not by the original commitments of the Constitution’s framers (many of whom owned slaves and signed a constitution that protected slavery as an institution), but instead by heroic citizens, by social movements, by politicians who struggled mightily, even fatally at times, against established immoral traditions. John Bingham is, of course, an example of such a person. So the notion that the Constitution’s meaning is open to contestation by modern citizens based on evolving conceptions of value suffers when the courts, rather than contemporaneous cultural and legal understandings, end up forming our points of departure.

So, for example, if Dred Scott v. Sandford was egregiously and constitutionally wrong even on the day it was decided, then this means that Reconstruction and the Reconstruction Amendments to the Constitution did little more than restore its original meaning, in which case the Civil War really should never have been fought and Bingham really isn’t that much of a hero after all. If Plessy v. Ferguson was wrong the day it was decided then it diffuses responsibility for Jim Crow and racial segregation, which in reality rests both with defiant Southern racists as well as with many wary Northerners. Plessy’s status as anticanonical focuses our attention instead (I think rather distractingly) on the ugly rhetoric of Justice Brown’s majority opinion in that case. Lochner is a more complicated and perhaps a more interesting example. The Lochner court invalidated a New York law prohibiting bakers from working more than sixty hours a week on the ground that the law violates the baker’s right to contract. What is interesting here is that the anticanonicity of Lochner is in part responsible for the Supreme Court’s highly deferential review of economic and social rights. So in 1970, when a Maryland family claimed before the Supreme Court that the state’s welfare laws artificially restricted their welfare benefits, preventing them from achieving a kind of minimum subsistence, the Supreme Court ruled that the Constitution does not recognize social- and economic-rights claims, citing Lochner in the decision.

One result of Lochner’s treatment as a kind of shibboleth is that the U.S. court lags far behind other nations in its recognition of affirmative government welfare obligations. My essay asks us to imagine a world in which Reconstruction is considered just as central to American constitutional law and constitutional ethos as the founding, to imagine a world in which the repudiation of Jim Crow counts as a triumph of a grassroots social movement over an ideology deeply embedded in both the North and the South, to imagine a world in which the end of the laissez-faire era constitutes a triumph for social and economic justice. We are denied that world by the legal treatment of anticanonical cases. It is not, incidentally, a world in which many of the Supreme Courts’ recent civil rights cases would resonate. I am thinking here of Shelby County v. Holder (2013), which overturned section four of the Voting Rights Act; Fisher v. University of Texas (2013), which called into question the affirmative action policies of a university that has a storied history of racial discrimination; and the ObamaCare decision, which chastises the government for seeking to secure social and economic rights for its citizens. Part of the argument of my essay is that the way in which we distance ourselves from anticanonical cases makes those more recent decisions find a more comfortable place within our constitutional law. So in short, holding up anticanonical decisions feels at first blush like a repudiation of courts, but it is really a glorification of the role that courts play in our collective life. I argue that it is time to recognize that our courts are really part of who we are, warts and all.

Professor Greene’s presentation is a wonderful coda to our whole discussion – warts and all. What we have heard, from the start to the finish of our panelists’ discussions is that there is nothing about courts that we can take for granted. There is nothing inherently good or bad about courts: they are what we make of them. As Judith Resnik started out by saying, our first courts did not offer us much of anything. She offers us an example of an architect hired to build a fake historic building to create a false sense of historical continuity, as though equal justice for all were an essential principle all along. Thankfully, this hollow promise was fulfilled because of what our society was willing to put into an empty vessel.

Professor Greene ends by asking us to look at judicial decisions and the behavior of courts as anchored very much in our time, our place, and our politics. We are currently living through a fascinating example of this concept: same-sex marriage. We now have thirty-six states in which same-sex couples may marry, some by legislative enactment, some by judicial decisions; and perhaps ultimately, perhaps soon, by the Supreme Court’s declaration of the meaning of equal protection and due process. Even without the Courts’ action, however, this social revolution is underway. Within the last two or three years, there was a great debate in the legal community about the utility of turning to the courts to accomplish this outcome. Many in the gay rights legal community said that it was too soon to go to the courts, that without more grassroots activism and work in politics, the courts would be dangerous to the cause. So far, this has proven not to be true – in fact, we have seen the opposite.

So it repays all of us who are interested in not only our legal system but our social and political system to take a look at what is happening in the courts today, hold it up against the mirror of some of the comments tonight, and watch what happens in the future. Because when historians look back on this particular period of the twenty-first century, they will draw some very interesting lessons – just as we have drawn lessons from the inflection points of the twentieth century that some of our panelists have spoken about tonight.