CivicMind.com - The Supreme Court Unplugged

First published in Voir Dire, a publication of the American Board of Trial Advocates (2002).

Americans love final endings--in sports, love stories, and trials-- so I am not surprised by the popularity of shows like Judge Judy in which conflicts are resolved in 15-minute cycles. However, I am baffled that court decisions that truly matter in viewers' lives, like those which protect millions of workers from discrimination and workplace hazards, rarely reach public consciousness. Whether the reason is lack of media coverage or public indifference, the result has important implications for our democracy.

When citizens fail to appreciate the connections between the legal system and the common good, or to understand the impact of legal decisions on public policy, then civic participation is seriously weakened. Those who believe that "litigiousness" is a threat to, rather than a strength of, American democracy are less inclined to engage in public discourse, less disposed to seek legal remedies to which they are entitled, and ultimately less likely to vote.

Much has been written about Americans' disenchantment with government from Watergate to Clinton's impeachment. Unfortunately, the legal system has suffered as well, but the change has been far more subtle. As the following examples demonstrate, there are a variety of reasons why the legal system, and in particular civil litigation, has been denigrated in public discourse.

Media coverage is an obvious place to start analyzing public dialogue. Whether in print, television and radio, or the Internet, stories are divided into four artificially created genres: landmark Supreme Court decisions, criminal trials involving celebrities or strange crimes, soap opera claims courts on daytime TV, and business cases. The reportorial style for each genre is stereotypical. Supreme Court cases are covered by star-quality reporters who have become synonymous with the court, like Nina Totenberg on NPR. Cases that receive the most ink and air time usually involve First Amendment issues like flag burning, school prayer, and pornography, or, civil rights issues.

The most widely covered genre, sensational criminal cases, feature high profile public figures. In fact, according to an article May 31, 2002 in USA Today by Martin Kasindorf and Fred Bayles, "Skakel flops in TV trial land," a new program called Celebrity Justice will premiere this fall to cover lawsuits involving stars and athletes. Given recent revelations from Wall Street following the Enron scandal, big time CEOs will no doubt join the cast.

Daytime trials, which revolve around a personality judge, can be a beneficial component of public education about the civil system. They offer a lot of good information to viewers and reach a huge audience when compared to cable and public television broadcasts.

In a news category of its own, the "business trial" usually stays on the financial pages. Occasionally, these cases leap onto the front page if a large number of people are affected. Examples include Napster, Big Tobacco, Microsoft, and more recently, Enron, Tyco, Worldcom and everything that followed. But, they are still covered like business news, not cases with long-term social and economic consequences for society at large. The latest corporate scandals are exceptions primarily because of their ripple effect on the economy, rather than the public policy changes they will generate.

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Trials that do not fit comfortably into one of the above categories, like most environmental cases, are ignored or turned into movies like A Civil Action and Erin Brockavich. These movies exposed the human cost of environmental risks that were either unregulated or willfully ignored, but they did not turn movie-goers into political activists, much less idealistic litigants.

Despite the widespread appeal of movies in which David is the hero, Goliath continues to receive media sympathy. For example, my hometown newspaper recently ran an AP story about asbestos-related deaths and illnesses under the headline, "Asbestos suits put companies on defensive." (Bozeman Daily Chronicle [Bozeman, MT] 17 Jun. 2002: A3). The story began, "An avalanche of asbestos lawsuits" are "threatening companies" by forcing them to seek bankruptcy protection "as a result of mounting exposure claims and hefty settlements." The public policy implications were buried near the end of the article: "Congress has never passed asbestos-related legislation over the past three decades." While the coverage was arguably balanced, the overall point was that litigation, not greed, nor callous disregard for public health, nor failure to comply with environmental laws, caused bankruptcies.

One stellar exception to the media's stereotypical coverage is Justice Talking, a weekly public radio show that "explores a wide range of issues that come before our nation's courts." Using a debate format along with public radio-style reporting, this fast-paced show has tackled issues such as hate crime laws, lesbian and gay adoption, search and seizure cases, and affirmative action.

Contrary to what we learned in civics about the three branches of government, the courts are frequently portrayed as interlopers in the public square. Any high school student will tell you "the legislative branch makes the laws, the administrative branch enforces the laws, and the judicial branch interprets the laws." Nevertheless, courts are frequently characterized as a mother-in-law trying to interfere in a contentious marriage between the President and Congress.

A week after the 2000 election, on November 14, the Wall Street Journal ran a front page story under the headline, "When All Else Fails, The American Way is to File a Lawsuit." The article lamented that "Litigation has become the preferred route for resolving many political and social conflicts that once would have been handled in the political arena or in the marketplace." The implication was that there are only two bona fide public forums, one political and the other economic. Never mind that the administrative and legislative branches have extended their reach into all forms of public life from consumer protection to affirmative action. There seems to be an expectation that the courts will confine their influence solely to the parties in front of the judge or jury. If the authority of the courts were that limited, then they might as well be in outer space.

Activist citizens--not judges--are responsible for grasping the power of the courts. Professor Michael Schudson, who chronicled the history of citizenship in his book The Good Citizen, identified a new cadre of citizens who, due to their "rights-consciousness," have "added the courtroom to the voting booth as a locus of citizen participation." From civil rights cases to litigation against handgun manufacturers, citizens now have "political ties not only to elected public officials in legislatures but also to attorneys in courtrooms and organized interest groups that represent them to administrative agencies."

But never mind the reality. According to an article by Adam Cohen in Time Magazine, critics have dubbed cases like those against Big Tobacco "law-by-trial-lawyer," because they believe "it's an undemocratic way for a nation to decide its approach to controversial issues like handgun and tobacco regulation." ("Are Lawyers Running America?" Time 17 Jul. 2000: 22+)

Another reason that court-bashing has a receptive audience can be traced to prevailing misconceptions about how the legal process operates. Litigation is characterized as a process for resolving disputes between two parties, one a winner and the other a loser. Little or nothing is discussed about the implications of each decision for future disputants much less public policy. In short, basic legal concepts which are essential to our democratic system are missing from public dialogue and, apparently, civics education.

In The Life of the Law: The People and The Cases that have Shaped Our Society from From King Alfred to Rodney King, Arthur Knight writes, "The power in a named idea--a legal concept--can be greater than the specific judgments of a thousand courts." Of the twenty or so concepts he describes, the absence of two of them from public awareness, "binding precedent" and "judicial review," seems to contribute to the notion that the courts are not entitled to equal footing in the public square with the other two branches of government.

He traces the genesis of "precedent" to the need for consistency in judicial decision-making, "the most important idea ever introduced into our law." In a world with more intelligent media coverage and stronger civics education, the public would understand that when precedent is set, whether on auto safety or sexual harassment in the workplace, public attitudes shift, Congress responds, and whole sectors of society change.

With regard to judicial review, Knight points out that, beginning in the 1920s, "the Supreme Court used the power of judicial review to catapult itself into the center of American political life. From that day to this, scarcely an important issue of governmental power has arisen of which the Court has not been the final arbitrator."

Unfortunately, when the courts overturn laws, there are frequently accusations they are making laws instead of protecting Constitutional ones. Many issues, from abortion to Internet filtering, are finding their way not just "up and down the courts" as the phrase goes, but "back-and-forth" between different branches of government. When I taught a class of seventh graders about the First Amendment, we discussed whether flag-burning should be permissible speech. I explained that Congress attempted to ban flag desecration by statute, but the Supreme Court struck down the law because it violated the right to free speech. Nevertheless, Congress could still attempt to amend the Constitution to prohibit flag desecration if it had a public mandate to do so. Hopefully they understood that rights and responsibilities may expand and contract through a deliberative process that includes all three branches of government.

Final endings like those in the movies are not as prevalent in a democracy as in Hollywood. Public policy is always evolving. Some people will never be comfortable with litigation or the tug-of-war between different branches of government. Those of us in the legal profession need to be more aggressive about responding to accusations that the courts are "overstepping their boundaries." There are no fences in the public square, nor should we allow any to be built.

	Linking Litigation, Public Policy, and Civic Participation