There has been, of late, much talk of the Roberts Court's constricting view of access to the judicial system. Its tight standing decisions, (1) its embrace of more potent Eleventh Amendment and common law immunities, (2) its enthusiastic retrenchment of habeas corpus, (3) its aversion to facial and vagueness challenges, (4) its emboldened standards of federal preemption, (5) its unfolding limits on punitive damages, (6) and more, (7) have led many to conclude that the high court, under the Chief Justice's leadership, will significantly curtail the availability of the federal judicial forum. (8) Even the often-cranky Wall Street Journal could enthuse that "the biggest change under Chief Justice John Roberts might not involve who wins on the merits. Rather, it may be who gets through the courthouse door in the first place." (9) Less here is thought, perhaps, to be more, or, at least, better.
It is not my purpose to make light of such musings. I have, truth told, partaken occasionally of them myself. (10) Nothing pleases the palate of a federal courts aficionado like the endless dissection of the intricacies of our national jurisdiction. But these exhortations explore, at best, the lawyers' vision of access to the halls of justice. They cobble and patch at the edges of traditional patterns of judicial power. They suggest, in particularized terms, that cases might be brought earlier or later, or via different groups of plaintiffs, or under more imposing barriers, or against keener shields of liability. They might even mean that limited categories of disputes, previously thought amenable to judicial process, are now relegated to the fickle tides of democratic decision making. The scales of justice notwithstanding, or, even, be damned--no tiny matters these.
Still, any perceptive discussion of access to our judicial system with a probing visitor from a distant culture or clime would surely begin and, perhaps end, on a much different front. She would be more interested, I'm guessing, in our strongest and most pervasive transgression against access and equality--the exclusion from the effective use of our civil justice system of that huge portion of the American populace who cannot afford to pay the fare. We have constructed, honed and maintained an immensely complicated, arcane, formal, imposing and mystifying structure for the government-enforced resolution of civil disputes. Almost no one, unschooled in its specialized practices, could conceivably navigate its corridors. We have, at least occasionally, conceded as much. (11) Lawyers are the necessary triggers of its determinatively adversarial processes. Cases are to be investigated, explored, organized, researched, presented, rebutted, and appealed. They are not self-executing. Lay Americans cannot here sensibly proceed on their own.
But, as is widely known, lawyers cost money. Some of us have it; many do not. Yet, beyond a tiny category of disputes, and unlike many Western democratic nations, we recognize no affirmative fight to counsel in civil cases. (12) And it shows. Study after demoralizing study demonstrates, with daunting and repetitive consistency, that over eighty percent of the legal need of the poor and the near poor--a cohort including at least ninety million Americans--is unmet. (13) As a result, these economically marginalized citizens are left outside the bounds of the effective use of our adjudicatory systems, state and federal. Crucial disputes, frequently involving the most vital questions of life--divorce, child custody, domestic violence, health care, shelter, subsistence, life-sustaining benefits--are either rejected, ignored, or determined under terms of extraordinary imbalance, as a result of the absence of counsel. And we know it. (14)
"How," our curious and persistent visitor might ask, "can you struggle so vigorously over the relative mite of what you call taxpayer standing while ignoring the timber, or perhaps the great oak forest, of near-total economic exclusion? "What passes for civil justice among your have-nots is a charade, or less." (15) "I should have thought you would understand that 'there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.'" (16) "Do you, in fact, even consider this to be a SYSTEM of justice?" "Can any system, pretending fairness, be squared with the recognition that large segments of society are simply unable to effectively employ its mechanisms? What is it, after all, that you carve on your courthouse walls?" (17)
The literal chasm that exists between our aspiration of "equal justice under law" and the actual exclusionary operation of our civil justice system has hardly gone unnoticed. Scholars have documented both its breadth and its impact. (18) Bar association studies and state equal justice commissions have decried it. (19) National coalitions have surged to contest it. (20) Law school curricula have expanded (though too modestly) to explore it. (21) The American Bar Association and many of its state counterparts have passed passionate resolutions to condemn it. (22) Activists have crafted strategies to challenge it. (23) Meantime, huge numbers of our fellows "lose their families, their housing, their livelihood, and like fundamental interests" as the result of the want of counsel. (24) Even more telling, a system of adjudication premised on the foundational notion that all parties are entitled to a meaningful chance to participate and to contest any adverse decision before a loss of liberty or property occurs, stands this foundational norm soundly upon its head. And this hypocrisy, which resides squarely at the core of the American system of justice, remains securely unmolested. In fact, given the dramatic economic challenges of 2008, 2009 and, one guesses, 2010, the cancer grows. (25)
This Article explores one cornerstone of the American embarrassment of access to justice--the decisions and the obligations of judges. Judicial response to the excision of the poor and near poor from the civil adjudication process is not the only trigger of our extraordinary and indefensible flight from fairness. Lawyers, bar associations, law schools, faculties, legislatures (state and federal), governors, and presidents, too, have played their respective parts. (26) But judges--state and federal--shoulder a singular and defining role in creating, maintaining, and assuring open, effective, and meaningful access to the system of justice they administer. United States Supreme Court Justices, federal court judges, state supreme court justices, and state trial and appellate jurists work atop a massive, monopolistic, government-proffered, violence-secured system for the orderly resolution of civil disputes. They determine, in actual and concrete ways, the nature and scope of our concept of constitutionally commanded fairness--the "process" "due" in a regime of equal citizenship and dignity. They, in generation after generation, put flesh upon the unfolding requirements of a meaningful right to participate and to be heard, without which the state's techniques for binding conflict resolution cannot be justified. (27) They set, quite literally, the constitutive markers of legitimate judicial decision making. Common law courts and their constitutional successors have done so for centuries. (28) In short, it is "emphatically the province and duty of the judicial department" (29) to gauge and ensure the essential fairness and integrity of its proceedings. But American judges have abdicated this central mission by ignoring the exclusion from our civil regime that occurs for those unable to afford counsel.
This does not mean that judges have been uniformly silent and unconcerned about the wholesale distortion of effective and useful access occurring daily in the courtrooms they administer. Thoughtful jurists, both state and federal, decry economic exclusion, and its painful impacts, in moving terms. (30) But they do so now, ironically, primarily in law day speeches, or at legal aid banquets, or in reports to the bar, or before equal justice commissions, or in law school graduation homilies, or, perhaps, before state legislative oversight committees. Not in their rulings. It is almost as if Justice Earl Warren, upon studying the horrors of educational apartheid, decided to take a couple of school superintendents to lunch or talk to the local Rotary Club, rather than pen Brown v. Board of Education. (31) The rejection of a judicially imposed right to effective access and participation by the poor is apparently thought to be so complete and unshakeable that jurists now see the challenge as principally a political or an ethical one. Judges may have developed, overseen, and implemented a dispute resolution system sufficiently complex and costly that many cannot deploy it. It is the obligation of others, however, to repair their work.
The overarching denial of equal access to our system of civil justice may be stunningly at odds with what we say we believe, but judges, somehow, are distinct from the sin. It has no impact on the essential validity of their endeavor. It presents no challenge to the heart of their undertaking or to the oaths of office they avow. Their hands are, somehow, clean. If they are able to offer the fruits and the majesty of their processes only to those of significant economic means, such is the way of the world. If the poorest must be gently, or even cruelly, cast aside, there it is. Under this view, the inherent judicial obligation to assure a meaningful opportunity to participate in a meaningful forum is not a serious undertaking. Empty formalism will do. Both the rich and the poor are free to engage the utterly requisite and profoundly expensive services of expert counsel. If one seeks relief from the impact of this bewildering transgression, American jurists effectively suggest that he turn elsewhere. The good-hearted among them, it seems, might...