Promoting Procedural Fairness

• Author: Hon. Steve Leben
• Position: The author is a judge on the Kansas Court of Appeals and a lecturer at the University of Kansas School of Law.
• Pages: 6-8

From the Bench

Published in Litigation, Volume 46, Number 1, Fall 2019. © 2019 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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HON. STEVE LEBEN

The author is a judge on the Kansas Court of Appeals and a lecturer at the University of Kansas School

of Law.

I began writing this after the 2018 mid-

term election, a time when partisan feel-

ings were high. By the time you read it,

a number of days—but a mind-numbing

series of fresh news cycles—will have gone

by. I’m confident that the light from these

partisan fires will not have dimmed.

“Why is this talk of politics here in my

L journal?” you ask.

It’s here because I hope to convince

you that the justice system we all work in

is vulnerable right now—and that there

are things we can all do, unrelated to any

political viewpoint, to shore it up.

Let’s start with the big picture: Trust

in America’s institutions has been way

down for many years now. In 2013, Gallup

recorded an all-time low (18 percent) in

those satisfied with the way the nation

was being governed. That was below

Watergate-era numbers. The number sat-

isfied rose to 38 percent in 2018, but be

-

hind that number lies our great partisan

divide. For Republicans and Republican-

leaning independents, 72 percent were

satisfied with how the nation was be-

ing governed as of September 2018; for

their Democratic counterparts, only 10

percent were. And only about 40 percent

of Americans have even a “fair amount”

of trust in the legislative and executive

branches of the federal government.

Sadly, while this widespread dissatis-

faction with governmental institutions

hasn’t focused on the justice system, our

legitimacy isn’t assumed these days, either.

Partisan Divide

That’s in part because the partisan divide

colors the public’s views of the judiciary

too. Since the 2000 decision in Bush v.

Gore, there has been a partisan divide in

public approval of the U.S. Supreme Court.

Republican approval of the Court shot up

from 60 percent in 2000 to 80 percent

in 2001, while Democratic approval fell

from 70 percent to 42 percent. By 2015,

though, the Court had twice upheld the

Affordable Care Act and held in favor of

marriage equality in the Obergefell case.

Democratic approval rose to 76 percent,

but Republican approval fell to 18 per-

cent. More recently, at the beginning of

the Court’s October 2018 term and with

the seating of Justices Neil Gorsuch and

Brett Kavanaugh, Republican approval

had rebounded to 67 percent; Democratic

approval had fallen to 36 percent.

Yet another divide in views on the

Court emerged in 2018—a gender divide.

Gallup’s annual survey before the start of

the Court’s October term showed 60 per-

cent approval from men and only 43 per-

cent approval from women. A year before,

there had been no difference (50 percent

for men, 49 percent for women).

We don’t know whether that gender

difference will endure; it hadn’t been pres-

ent in earlier years. But the partisan divide

in views of the Court has been persistent

since 2000.

All of this matters. We rely on the pub-

lic’s sense of the legitimacy of the justice

system—to abide voluntarily by our deci-

sions, to comply with the rules of the legal

process, to pay fees to attorneys, and even

to submit disputes to us rather than using

some alternative, either now or in the future.

Can the justice system survive if there’s

a permanent partisan divide in the pub-

lic’s perception of its highest court? That’s

a question I worry about but can’t answer.

Nor do I know how the public’s lessened

sense of legitimacy in institutions gener-

ally will affect the justice system over an

extended time.

Unfortunately, there’s no reservoir of

trust in attorneys or judges that can coun-

teract this lessened sense of legitimacy for

the institutions we work in. As a judge, I

still remember the proud day 26 years

ago when I first put on my robe. I thought

that folks would trust me because I was a

judge. But if that was once the case, it’s no

longer so. In Gallup’s 2017 survey of trust

WE ALL HAVE A ROLE IN

PROTECTING OUR

JUSTICE SYSTEM:

PROMOTING

PROCEDURAL FAIRNESS