Equal and Unequal Justice
Air Date: May 9, 2016
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HEFFNER: I’m Alexander Heffner, your host on The Open Mind. As four-to-four Supreme Court decisions loom in the shadow of a vacant justice, we’re honored to welcome today Harvard Law School Dean Martha Minow, for her insight into the American legal system. Vice-Chair of the Legal Services Corporation, providing civil-legal assistance to low-income Americans, Minow is a leading scholar of human rights and advocacy for racial and religious minorities, author most recently of, In Brown’s Wake: Legacies of America’s Constitutional Landmark. Most notably, perhaps, Minow is the teacher whom President Obama cites as life-changing, to channel his cause of social justice for a common good.
At the helm of the law school amid intensified racial tension across this country, Minow compassionately addressed the defacement of black professors’ photographs, and the university has since removed its seal with ties to an 18th-century slaveholder. “We can’t choose our history, but we can choose that for which we stand,” Minow wrote to the community, “Above all, we re-dedicate ourselves to the hard work of eradicating not just symbols of injustice, but injustice itself,” her words.
Now we’ll explore the climate of legal education, the state of the American judiciary, but first, obstructionism in the US Senate. And let me begin, Martha, by thanking you for being here.
MINOW: It’s an honor to be here.
HEFFNER: Obstructionism. You and a counterpart at Pepperdine wrote in a Boston Globe column about the appointment, would-be appointment of Justice, would-be Justice, Judge Merrick Garland to the bench. And you are critical of this instinctive obstructionist tendency, um, and, that might be emblematic of, uh, obstructionism on a broader scale. But in this case, in this point, what’s the concern?
MINOW: Deanell Tacha, who’s the Dean at Pepperdine, and I participated with, many other law school deans in the letter to members of the senate, just actually pointing to the Constitution, which directs the President of the United States to make appointments when there are vacancies on the court, and with the advice and consent of the senate. And so, she and I decided to write an editorial, because both of us have had experiences in countries where the rule of law is not strong. Uh, where there is civil war. Where there is disorder. And, it, it seemed to us important to underscore that this is a treasure, our rule of law, our judiciary independent from politics, and it’s in jeopardy. Uh, right now, I, I understand the poli-, politics of the situation, I think that many Republican members of the senate believe that, uh, it is a, uh, get out the vote move. They can indicate that they’re strong for their base. But the Constitution’s pretty clear. The president has to, uh, nominate someone. The senate can choose to disapprove. There’s nothing, uh, in their Constitution that says the grounds upon which they must vote. But to refuse even to meet with the individual, or to have the process go forward, that’s just pure politics.
HEFFNER: To what do you attribute this kind of de-legitimization of the process?
MINOW: Well, I have to be honest and say members of both political parties have contributed to it. Uh, and, uh, you know, even President Obama when he was a senator, uh, contributed to it, in the sense of voting against a well-qualified individual because he disagreed with the view. Again, that’s the prerogative of the senators. They’re allowed to, uh, express their views on any basis.
I think that the new height of obstructionism, which refuses even to engage the issue, is, in some ways, an acknowledgement that, if the issue were engaged, there actually wouldn’t be grounds, uh, for refusing to, uh, uh, to confirm, uh, Merrick Garland, uh, for the Supreme Court. And that’s a really sad moment. When people in a democracy are afraid of having the conversation, because it might actually lead to a conclusion they don’t like, as opposed to saying, let’s have the conversation, and let’s learn, and, you know, let’s, let me try to persuade you, and if I’m not persuading you, then you try to persuade me. That’s what we hope for.
HEFFNER: And we hope that the political outcome will be civil, will be thoughtful, and, uh, will ultimately yield some kind of result.
MINOW: That’s why my work in Kosovo, for example, ca-, came to mind, when I was thinking about this moment. I don’t think it’s an exaggeration to say that respect for the judiciary, respect for the rule of law is in jeopardy. Uh, the, uh, public regard for the, the Supreme Court is much lower now than it used to be, even though it’s higher than the public regard for the elected branches. This is not good for our society. Uh, when conflicts, uh, which we will have, we will always have conflicts, when conflicts, uh, cannot be resolved with respect for the judgments, that’s not good for anybody.
HEFFNER: Well, I think you point out, and we were talking about this off-camera, the inherent political nature of the appointment process. And there’s something to be said for this kind of inseparability of law and politics in, in the realm that is public affairs, dating all the way back to our first Chief Justice and our earliest Justices. I’m thinking about, um, Justice Marshall, I’m thinking about Justice Chase. Where do you draw the line when thinking about the political stakes of an appointment?
MINOW: The United States Constitution builds politics right into the process of selecting federal judges. It gives the appointment power to an elected official, the President of the United States. It gives an advising consent power to the senate, in the mutual-checking device of our Constitution, the politics are built-in by law. And that mutual-checking possibility of the two branches of government in the selection of the personnel for the third branch is an acknowledgment by the framers that ours has to be a practical system, in touch with the views of the people. But this third branch, the judiciary, is designed to have a longer view. To have individuals who are more insulated from politics. They’re not elected directly. They’re appointed for life. So, politics enters, but it’s also, uh, controlled. And if you bypass this process, I’m not sure what we do.
Of course, in the states, about half the states elect their judges, and that’s an even more direct involvement with politics. Um, but I think it’s not the same as the elections of many other candidates. Uh, people who run for the judiciary, um, I think are pretty careful to indicate that they will adhere to the rule of law.
HEFFNER: Well, I think you said it, a selection process. And even though there may be some problems associated with the politics of judicial elections, it’s a process.
HEFFNER: It’s a selection. And the American people under these circumstances, are not even guaranteed that.
MINOW: Unfortunately, no, and, you know, you could say, well, in the, uh, era of modern technology, people could just vote on their phones for who they want to be judges. We could amend, uh, all of the ways in which we select our leaders, uh, with the advent of modern technology. We haven’t done so. It’s actually served us fairly well. Ours is the longest enduring constitutional, written constitution in the world. At the moment, I think it’s strained. It’s showing the strains, uh, of, of politics, and, uh, a frustration. I think it, unfortunately, reflects a real breakdown in the political parties themselves, which is fascinating because the, our constitution did not anticipate political parties. They’re not even written in the Constitution, there’s no guidelines. When we look at the arcane processes of delegate selection in the primaries and caucuses, it’s not in the Constitution. This is all created post, uh, Constitution. And, uh, yet I think right now we’re in the middle of tensions between and within the political parties. They’re not functioning that well.
HEFFNER: And how does that, uh, bode for the future of legal education today? The effort of, uh, one of your students to be above the fray and transcend what is this ideological trench warfare in pursuit of, of the law. Whether you have a more living constitutional theory or you’re more of a textualist, there, there may be ideas associated with those approaches, uh, but their fidelity is to the, the law and the Constitution, and not to a political convention or a political party.
MINOW: Well, let’s put it in perspective. Um, at the United States Supreme Court, which hears maybe 60 cases a year, um, most of the cases are resolved, uh, without much dispute. Um, and, uh, the 10 or 15 that are controversial, um, we all know about, and we hear about, but most of the cases are not so controversial. Uh, the federal courts hear just a tiny sliver of the cases that go to court in this country. Most of the cases are in the state courts. And most legal issues never go to court.
So, the legal system is actually not in jeopardy in quite the way that your question suggests. At the same time, access to law is in jeopardy. And here I see, from my vantage point as the vice-chair of the Legal Services Corporation, a serious crisis going on in this country. Eighty percent of low-income people have no access to the civil justice system, meaning anything but criminal law. So, whether they’re dealing with access to veteran’s benefits, or a protective order to guard against domestic violence, or a way to guard against the loss of their home due to foreclosure and unscrupulous behavior by mortgage, uh, providers, there’s no way they can afford a lawyer. And that’s a serious problem. Because that, again, erodes respect for law, it re-, it, it erodes the prospects for justice.
And if we also put that together with, uh, the privatization of justice, eBay resolving over a million disputes last year online, without a person in-, involved at all, just with an algorithm. Uh, private companies ha-, requiring, uh, mandatory arbitration rather than access to court for the resolution of consumer disputes, and so forth. If we see more and more ways in which ordinary people cannot enforce their legal rights, that’s a more serious problem than the pol-, politics that you’re describing.
HEFFNER: So how is the board on which you sit attempting to resolve this severe inequity?
MINOW: Well, the Legal Services Corporation, which was created under the presidency of Richard Nixon, reflected a bipartisan view, uh, with the leadership of the American Bar Association, that law is important for advancing democracy, and securing liberty for every person. You think about the Pledge of Allegiance, uh, “liberty and justice for all.” This is at the core of the American creed. The creation of the, uh, uh, Legal Services Corporation was a recognition that low-income people have trouble being able to afford a lawyer.
Uh, its funding has gone up and down. It’s, it’s created by the, uh, by the federal government, it’s funded by the federal government, although it’s a private non-profit organization. The members of the board are appointed by the President of the United States; confirmed by the senate. It’s kind of an odd duck, uh, kind of a public/private entity.
How the board right now operates is by continuing, uh, try to work with the congress to secure sufficient funding for the grantee organizations, uh, across all of the states. And also to deal with just the basic fact: we will never have enough money for lawyers for poor people. So one of our major initiatives has been to develop new technologies that can help people without a lawyer navigate the legal system, and help sort the cases that really need to have a lawyer from those where an individual with some help, uh, online, uh, may be able to manage by him or herself.
The technology innovations are fantastic. Uh, for example, interactive websites that allow a veteran and members of a veteran’s household to be able to get their questions answered, uh, so that they aren’t stuck languishing, uh, with, uh, with no response, uh, from the bureaucracy. Um, I think that there are great innovations in many other fields where law could learn. Uh, it’s happened in medicine, it’s happened in, um, in just simply consumers’, uh, experiences with large stores. You can go online, and you can have a, actually a fairly intelligent conversation with a computer, uh, to sort out what your problem is and at least, uh, get some answer or more efficiently get to a human being. And I’m excited to see the work that Legal Services Corporation is, is supporting all over the country in this, uh, vein.
HEFFNER: But you don’t want to veer too much towards the eBay algorithms in adjudicating this, right?
MINOW: Well, I think—
HEFFNER: I mean in, in terms of the broader picture of the democratization of law, because you’re saying the sheer volume doesn’t allow for that kind of due consideration across socio-economic lines.
MINOW: I should be clear that the eBay, uh, dispute resolution receives rather high marks from those who participate.
MINOW: Uh, I think the problem is, if we foreclose any public justice, then we cut off the virtuous cycle that’s represented by law, where there are public decisions which then deter misconduct in the future. We need to have both. We need to have private dispute sy-, systems, and we need to have public dispute systems.
HEFFNER: Or even just public scrutiny.
MINOW: Public scrutiny would be an advance.
HEFFNER: Right. I think that this question of democratization is very, uh, relevant to your focal point, your focus as a scholar, um, on, uh, racial equity. What you’ve studied, from Brown onward, uh, you were a clerk for Justice Marshall, um, Thurgood Marshall. Um, you’ve seen the evolution of Brown, uh, in both the betterment of American society, and maybe the, um, the, the opposite of that in, uh, combatting a resurgence of racially charged, um, legal thought and, uh, political action. And I’m really talking about the disenfranchisement of the American voter. Uh, can you weigh in on that subject, and how you see Brown’s relevance today?
MINOW: Well, there are so many different elements packed into your good question. Uh, the status of African-Americans, uh, in the United States following America’s original sin of slavery continues to be, uh, uh, simply unsatisfactory. Um, the nature of economic disadvantage, uh, in creating basically two Americas. Uh, those who have access to resources, and those who don’t, have very different experiences with the justice system, with healthcare, with education, with every aspect of life.
Um, in addition, the role of courts as an instrument for trying to rectify injustice with, perhaps Brown vs. Board of Education being a high-water mark, but really an unusual use of the courts to go out ahead of public opinion. Uh, compared with the use of the legislative process, uh, to try to express the views of the majority.
Um, and another aspect of your question, uh, that I think can’t be denied is, um, whether or not we even have a “we” in this country, at this moment—
HEFFNER: What do you mean?
MINOW: —is there a “we”? Uh, is there a sense of a common purpose, a sense of a common identity, a sense of a common mission?
HEFFNER: Do you think that, in terms of the pendulum that swung from, um, Earl Warren’s court to William Rehnquist’s court, um, that that has some relevance to this conversation, of how we view, uh, and how we treat people of color in this country?
MINOW: Well, of course. So, let’s talk about the, uh, legacy of Brown vs. Board of Education, which, of course, didn’t come out of nowhere. It reflected over 20 years of, ex-, uh, pr-, uh, practice and litigation, uh, efforts by leaders at the NAACP legal defense fund, including my former boss Thurgood Marshall, and many other, uh, very, uh, uh, creative and courageous, uh, lawyers and, uh, leaders building on, step by step, the challenge to the prior decision, Plessy vs. Ferguson, from the 1890s, where the Supreme Court had ruled that the equal protection clause of the 14th Amendment does not guarantee integrated experiences. Instead, Plessy said, separate can be equal. That case arose in the context of railroad cars, which literally sorted people by race, what car they could sit in. And it wasn’t just separate cars. The car reserved for black Americans was far inferior.
Um, uh, the challenge to that doctrine focused, over time, on schools, on public education, and what Thurgood Marshall said to me was, we said, “separate but equal,” okay, show us the equal. The strategy was to actually look at the expenditures on schools, and to show—which was not hard to show—that the amount of public dollars going into the schools for black children was a sliver of the amount going to the schools for white children. One of the strategies, therefore, was to integrate the schools, because, as Justice Marshall used to say, “You can’t have differential expenditures when the kids are sitting next to each other in the same classroom.”
Of course, another goal was to tackle the ideology of racial superiority that was, uh, reinforced by segregation, uh, with one of the pivotal cases coming out of the University of Texas, refusing to admit black students to the law school there. The University of Texas said, we’ll create, we’ll create a separate school, a separate but equal one. The school was such a sham, it was easily rejected by the Supreme Court. It was one desk, uh, in the courthouse. It was not a school. It didn’t have a library. It didn’t have a faculty. So, “separate but equal” was easily demonstrated as a sham in that case.
Ironically, today, University of Texas, we have a case pending in the United States Supreme Court about whether the University of Texas’ use of race as one factor in admitting students violates the equal protection clause.
Now, somewhere between the earlier decision and the current pending one, the country has changed, and the country has changed in a couple of ways. Brown vs. Board of Education mandated the dismantling of segregated schools. Uh, nothing happened in the country other than, uh, resistance for about ten years. After ten years, uh, actually, under the leadership of President, uh, Nixon, a Republican, the federal government began to enforce, uh, the law. There was a backlash. There was a serious backlash. And, uh, he changed his own, uh, uh, uh, views on the subject, and he appointed to the Supreme Court individuals who slowed down desegregation.
In the meantime, the congress acted, and enacted the 1964 Civil Rights Act, and that shifted the focus on, uh, desegregation to other branches of government. We’ve had a mixed story ever since. Um, probably, uh, one big turning point happened when, uh, actually desegregation efforts in the schools started to bring in suburban schools in the north. And the Supreme Court said, no, you can’t do that if you haven’t shown that there was an original act of discrimination in the, in the suburban schools.
That contributed to white flight, with many whites with any resources leaving the public school systems, either by moving to the suburbs or moving to private schools. The backlash goes on today. Um, we can talk further about it, um, but, in some very important respect, it does reflect the impact of politics on law.
HEFFNER: Looking at the backlash that … is evident in our politics against what was perceived as a preference for, or preferential treatment that minorities, um, would be getting, how do you see the legal, the constitutional, um, framework evolving in a way that undermines the … whatever constitutional legitimacy that idea has, that we were giving a preference to people of color, and now we have to somehow undo that preference?
MINOW: So, the idea that there are preferences involved, um, is itself, of course, one of the big, uh, controversies, uh, in the issue of race relations. Uh, to dismantle segregated systems, um, may look like giving a preference, but I don’t think it is. Uh, and, and the problem that has emerged in schools in particular, um, is the continued, um, exclusion of disadvantaged people from, uh, uh, educational opportunities.
In public education right now, schools are more racially separated today than they were in 1953. That’s not by law. It’s by the, uh, activities of, uh, housing, uh, where housing units are built. Uh, it’s by, um, zoning, uh, it’s by decisions about where to draw the lines between school districts. It’s much more subtle than it was before. I think, in response to that, it’s understandable that many school systems, public school systems created, uh, magnet schools to try to draw students from different backgrounds together, and, of-, often have included race as a factor in the selection. Is that a preference? It’s trying to overcome a disadvantage.
HEFFNER: And in some way, the court has condoned or validated the present culture.
MINOW: Well, well the Supreme Court has said when the, um, patterns are a result of private decisions and not governmental decisions, then the Constitution does not apply. Because, it is true that the 14th Amendment, enacted after the Civil War, protects people against discrimination by government. The problem is disentangling private preferences, government preferences. That’s very, very challenging. Um, when you, you talk about the, the pipes in Michigan, you know, that’s a political decision. That was a decision made by the political actors, not by law, to go with a cheaper alternative of outsourcing.
MINOW: The law was not part of that.
MINOW: The law, actually, is producing some remedies for it. Um, and if we talk about the criminal justice system, you know, I don’t think we have a separate but equal criminal justice system. We have a criminal justice system that is racialized. Um, but it’s even more, uh, a system for poor people. If you have resources, whatever your race—
MINOW: —you will do much better in the criminal justice system than if you don’t. And that’s, that’s a tragic truth, in a country that says that we guarantee equal justice for all.
HEFFNER: Where do you see the Roberts court taking the country on these questions, these fundamental questions about race in America?
MINOW: Well, Chief Justice Roberts, uh, who I respect, uh, a great deal, will continue to lend his name to the court as long as he’s the chief justice. You know, I think that, um, actually, for the last 30 years, many issues of racial politics have shifted from the judiciary to the elected branches. And I predict that that will continue to be a pattern.
That said, the court has every year one or two or three cases that inv-, involve racial justice. And I think it will continue to be a struggle inside that court about the relative weight to give to color-blindness versus race-consciousness. The issue of class is much harder for the courts. There’s nothing in the Constitution that protects people against discrimination on the basis of income. That will require political action.
HEFFNER: Hmm. And do you foresee that materializing at any point?
MINOW: I, I think it’s beginning to happen. I think that we see some cities that have developed living wage, uh, ordinances. I think that we see, um, some efforts to actually put real restrictions on unscrupulous behavior by creditors. Um, I think that the Consumer Finance Agency is a reflection of the politics, uh, of a political reaction to the abuses, uh, behind the financial disaster. So, uh, I hope the system will continue to react. But if the electoral process is broken, uh, that is a far more serious problem, and there the courts have an indispensable role to play, making sure that the system itself can hear people’s preferences.
HEFFNER: Martha Minow, Dean of Harvard Law School, thank you for coming on The Open Mind today.
MINOW: Thank you so much. Great conversation.
HEFFNER: And thanks to you in the audience. I hope you join us again next time for a thoughtful excursion into the world of ideas. Until then, keep an open mind. Please visit the Open Mind website at Thirteen.org/Openmind to view this program online, or to access over 1,500 other interviews, and do check us out on Twitter and Facebook @OpenMindTV for updates on future programming.