How the Supreme Court is making it harder to get into court.

The law, lawyers, and the court.
May 21 2010 3:56 PM

Open the Door and Turn On the Lights

The Supreme Court is making it distressingly difficult to get into court.

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Arbitration programs are supposed to be substitutes for courts. But they lack the critical feature of an open door. Instead, arbitration programs are entirely private. Several commercial "justice services" prohibit attendance by anyone other than the parties directly involved. The public can neither watch these judicial surrogates in action nor know who is systematically winning and losing.

Shuttling claimants to private judging is in tension with the traditions from which our justice system emerged. In North America, the public has had the right to watch court proceedings since early Colonial times. The 1676 Fundamental Laws of West New Jersey's charter provided "[t]hat in all publick courts of justice for tryals of causes ... any person or persons ... may freely come into, and attend ... that justice may not be done in a corner nor in any covert manner. ..."

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A century later, state constitutions guaranteed such openness. The 1777 Vermont Constitution and the 1792 constitutions of Delaware and Kentucky offer examples, proclaiming that "all courts shall be open."

The federal Constitution includes the phrase "open court" in its (little-read) section on treason. In addition, federal rights for criminal defendants to a speedy and public trial, plus rights to civil juries, the First Amendment, and principles of due process protect public access to both civil and criminal trials and to pretrial hearings and court records. If you can make it in the courtroom door, the Supreme Court insists that what happens is open. This term, it overturned a state judge's exclusion of a lone spectator from a jury voir dire.

At the same time, the court's closing out of many claimants is getting congressional attention. In 2002, lawmakers exempted car franchises from being bound by contracts to arbitrate claims against manufacturers. A few years later, Congress passed another act, protecting farmers dealing with large agricultural purchasing conglomerates. Last fall, more than 25 members of the House of Representatives proposed doing the same for employees and consumers in an "Arbitration Fairness Act."

In their objection to closing the Supreme Court's main entrance, Justices Stephen Breyer and Ruth Bader Ginsburg noted that people approaching it were greeted by the words "Equal Justice Under Law," inscribed to represent "the ideal that anyone in this country may obtain meaningful justice through application to this Court."

Reopening the front entrance would be one small symbolic step (44 marble ones, actually) toward welcoming us all in. And if Congress reversed the court's recent rulings enforcing adhesive contracts that lock people into arbitration, the lights would go on in more courthouses across the country.

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Judith Resnik is the Arthur Liman professor of law at Yale Law School.