America’s Courts are Losing Legitimacy
Truth, Division, and the Growing Crisis of Authority
All things built by humankind eventually fade away. From the columns of marble and stone that we built thousands of years ago, to the very order of a society itself, the physical structure of the things we establish eventually comes apart without some form of repair, or some kind of replacement. The choice is always ours to make. In societies and nations, sometimes we choose to replace a broken order with another form of order. Sometimes we choose to replace it with forms of chaos. This society is making this choice now, all of us together.
On a recent morning, I was sitting in Superior Court waiting for a case to be called. The Court’s Civil calendar that morning was particularly heavy, but fairly routine. Until suddenly, a matter was called regarding a man who was being sued by a landlord in a property dispute, potentially losing his home.
The judge that morning in the Court’s Real Property Section was grizzled, his face bent with wrinkles, jaw bitten down hard, and his eyes cast downward to the massive stacks of cases needing to be handled by him that morning. He had been on the Court for nearly 30-years. The man potentially to lose his home was adamant that the Court should throw the case out. The landlord had not properly served him, he said, and the complaint was invalid on its face. The Court had no jurisdiction, he said, because the complaint should have been filed elsewhere.
One by one, the judge listened, and shot all these arguments down for what seemed like hours. Things became heated very quickly. If his justice wasn’t given to him in Court, the man promised to find the landlord in the street and do justice there. If the Court wouldn’t give him what he wanted it was because the corrupt Court was taking bribes from the landlord, or was conservative and biased against his political opinion. He refused to recognize any authority in the Court, and the bailiffs eventually threw him out.
This was at the least an interesting morning, but unfortunately it is something that is happening now more frequently around the country. The public increasingly refuses to respect the systems and order that the public, in theory at least, has made over generations.
In a democracy, the power and authority of government institutions, including the court system, ultimately depends on whether the public believes they are legitimate. That public perception of legitimacy, and the authority that it confers on otherwise void institutions, might soon break apart at the seams. The reasons for this are right in front of us. And we are making the choice for chaos.
The current context of national legal and constitutional crisis is key to consider. And it will only get worse. With the overturning of Roe v. Wade and the growing perception of the Supreme Court as a partisan institution unconcerned with applying the law fairly and impartially, instead seeking to weaponize it to advance a conservative political agenda with bribes from conservative donors, the judiciary is becoming embattled. A former President is on trial in multiple federal and state courts at the same time, for dozens of felonies, including charges for retention of national security secrets. And now he has been convicted in state court in the first of his criminal trials, with prison time a real possibility. His opponents say the courts are working to bring justice to a man who has evaded it for decades. His supporters say State District Attorneys and the Department of Justice have been infiltrated by partisan lawyers whose only goal is to put the former president in prison, no matter the law, the facts, or the consequences to the country. A special counsel summarily recommended that a current President not be prosecuted for illegally mishandling classified documents, something that the President’s opponents argue is exactly what the former president has done. And these conflicts are not confined to the legal world.
The Congress’s public standing is at its lowest ebb ever, with partisan gridlock creating divisive rhetoric and serious legislative consequences for the country. State and federal elections are increasingly disputed and viewed as illegitimate by large swaths of the general public. We have an attempted coup on our hands for the first time in more than 150-years. Cultural figures, actors, celebrities, accused of sexual assault and abuse. This is the social and cultural backdrop for the historic loss of public confidence in government and private institutions broadly, not just state and federal courts, but everything else as well. And adding fuel to the fire is a mainstream media happy to rush to conclusions about persons accused of wrongdoing and to sensationalize, divide, and exploit the decline of America if it means higher ratings and more money.
This is what the public, already only receiving fractured information through a hall of mirrors, sees in its institutions and leaders. They see a government that preaches respect for the law, justice, and equality for all, and seems to do something else. They see leaders that say one thing, and do another. With the expanded access to information that the technological revolution has provided, people rightly or wrongly see hypocrisy everywhere. And no wonder we are where we are.
It is natural in the course of human society for institutions, much like columns of marble and stone, once possessing authority of law and the power to enforce it, representing a people with its symbols and flag, to begin to fall apart if not repaired or replaced by something else. No thing lasts forever, and much less a thing built by successive generations of human beings. Each generation has sought with the best of intentions to make a better life for themselves and their children. But like all societies that came before, eventually the temptations of wealth and the fight for power and respect begin to destroy the foundation. Divisions begin. The public loses trust in its leaders. And little by little, the standing flag behind the bench becomes a symbol of a lost cause, some distant oppression of elites who don’t know or care about you, rather than a people’s government made by the people. Forms of order can fall apart into forms of chaos. I fear that we are well on the path to this place, but there is still time for repairs to be made.
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