Justice Citizenship
By
By
Lauren Sudeall[1]*
“[T]hat this nation . . . shall have a new birth of freedom, and that government of the people, by the people, for the people, shall not perish from the earth.”
– Abraham Lincoln, Gettysburg Address (1863)[2]
“I want to suggest the extraordinary notion that democracy means that ordinary people should participate in making the decisions that affect their lives.”
– Lani Guinier, More Democracy[3]
In recent years, the topic of democracy has seen a resurgence—perhaps due in part to a recognition of its heightened global instability.[4] Yet, in these pervasive discussions regarding democracy and its role with respect to governance, relatively little attention has been paid to the courts, particularly at the state and local levels where most people are likely to interact with them. In a time when the courts’ authority is being questioned, it may be helpful to emphasize that courts, like all democratic institutions, are “of the people, by the people, [and] for the people.”[5] In relation to the other branches of government, the courts often serve a countermajoritarian role—but as part of our broader democratic system, access to and engagement with the courts should still be guided by democratic values.
As Allan Hutchinson has observed: “Democracy . . . is one of the most frequently mentioned, yet least specified ideas in the political lexicon.”[6] However they interpret the term, access to justice scholars invoking the concept of democracy seem to have focused primarily on how courts and adjacent service providers support or advance the greater democratic project of governance by the people. For example, some scholars have focused on the operation of the courts as it relates to their institutional role in a larger political structure or on broadening the scope of who can help ordinary people address their legal problems, making the courts more widely accessible.[7] Largely absent from this discussion is the fact that courts are not just facilitators of democracy but also inherently democratic institutions.[8] Scholars have spent less time on the preliminary step of defining democracy and what it means, or should mean, within the courts and as part of their day to day operations. If we are to understand democracy as a form of government that draws its authority and takes direction from its constituents, the courts too should operate by the same principle.[9]
Courts offer a unique opportunity for ordinary people to engage in democratic governance. In the courts, unlike in the other two branches, citizens are more likely to play a direct role in the democratic process. Although all citizens can sporadically participate in democracy by voting in elections or engaging in indirect activities like campaigning and civic education, individual engagement is required for the courts to function on a regular basis—for example, in the form of litigants introducing relevant factual information or advancing legal arguments that cannot originate from the court itself. Thus, it is even more necessary to define the contours and values guiding democratic participation in the courts. Democracy may demand that courts serve certain functions in the broader political structure and that people have some role to play in ensuring that the courts’ proper institutional role is fulfilled, but what does democracy demand courts provide to the people themselves?
This short piece contributes to this nascent dialogue at the intersection of democracy, courts, and access to justice by centering the perspective and role of individuals navigating the court system and defining the concept of “justice citizenship.” Justice citizenship is focused not on role of the courts in a broader institutional or political structure, or on the substance of what they adjudicate, but instead on their relationship to their constituents and how individuals engage with the courts.[10] It encompasses a set of values that define what people can and should expect from their engagement with the court system and what it means to be a citizen of the courts. It builds on and is aligned with much of the literature on procedural justice—the idea that litigants’ perceptions of institutions and processes are influenced by whether they feel they were treated fairly—but contends that individual-court dynamics are not only important because they encourage system adherence[11] or because they have positive expressive or instrumental effects,[12] but also because they ensure that courts retain their democratic character and bind the courts’ operation to the will of the people. That means not that every court judgment must align with the community’s substantive understanding of justice, but that the courts are open and accessible to its citizens, allow people to pursue their own ends, and remain true to the institutional role the people have defined for them. Under the frame of justice citizenship, the courts belong to the people—they are not merely offered certain treatment in return for their compliance or willingness to regard the courts as legitimate; rather, it is their meaningful engagement that makes the courts legitimate.
This Essay identifies and introduces for further exploration three pillars of justice citizenship: equal, informed, and meaningful participation; self-determination; and accountability. These are all familiar concepts, but not always applied in framing the relationship between people and the courts that hear their cases. If we take justice citizenship seriously, these values should be used to assess systemic success and guide court reform alongside other structural values, like fairness, accuracy, and efficiency.
In broader discussions of democratic governance, courts are often described as countermajoritarian institutions.[13] In adjudicating individual rights and evaluating the lawfulness of other government actors, they are intended to serve as an independent foil to the executive and legislative branches, which are directly governed by the majority. Yet their status as countermajoritarian does not necessarily imply they are antidemocratic; indeed, many of our nation’s founders rejected this argument, viewing the Court’s ability to review the actions of the executive and legislative branches as a means of vindicating the will of the people as expressed through the Constitution.[14] In the access to justice context, one might similarly view the courts as a necessary complement to majoritarian rule, providing a critical vehicle for unpopular or marginalized political minorities who lack effective ways to engage the majoritarian political process.
Taken more broadly, our courts are part of a democratic form of government that draws its authority from, and is ultimately accountable to, its citizens. That function is served in a more literal sense through the election of individual judges but should not be confined to that narrow interpretation; the courts’ democratic nature is more holistic, characterizing the institution as a whole, and not just some of its actors. Through that lens, courts should retain their independent decisionmaking ability, but with respect to their process and design, they should ensure meaningful access while allowing individuals to retain their own independence as litigants.
Several scholars have explored how the concept of democracy relates to the courts and to access to justice. Much of that discussion has focused on the institutional role of the courts within a democratic structure. For example, Jessica Steinberg, Colleen Shanahan, Anna Carpenter, and Alyx Mark have discussed how endemic asymmetrical representation in state civil courts—where almost all defendants are unrepresented—has prevented those courts from serving their proper democratic role as a forum available to vindicate rights violated by other branches and serve as a necessary check on state and private power.[15] Judith Resnik has written about the importance of courts and how their adjudication of disputes contributes to democratic dialogue;[16] this public role is affected when access to the courts is restricted or proceedings are not transparent.[17] Building on the work of political philosopher Jeremy Bentham, who claimed that “open courts educate the public and discipline the state,”[18] Resnik argues courts and the access they provide are critical to a well-functioning democracy.[19] In writing about courts as democratic institutions, Resnik has also emphasized the importance of broad participation and representation.[20]
Other scholars have looked outside of the courts themselves to consider how court-adjacent entities obstruct or facilitate democratic goals related to shaping and interpreting law. Jamila Michener has argued that local tenant organizations participating in civil legal processes “buttress democratic citizenship.”[21] Similarly, Catherine Albiston has argued that civil society organizations, including those engaging in public interest litigation, facilitate democracy by “aggregate[ing] citizen interests, set[ting] the public agenda, shap[ing] public discourse and debate through the media, monitor[ing] the activities of government, and ensur[ing] that legal rights become meaningful on the ground.”[22] Rebecca Sandefur and Matthew Burnett have written about the democratic mandate that the law belongs to the people; therefore, methods for providing justice—including the provision of (legal) assistance—must be “designed with people’s wants, needs, and experiences in mind.”[23]
Thus, one way we might conceive of courts and adjacent organizations or entities is as facilitators of a broader democratic process. To the extent democracy involves a government of and for the people, courts facilitate democratic engagement and serve as a vehicle to elicit their continuous contribution to the formation and evolution of law.[24] Yet, in addition to participating in a democratic system, courts should be considered democratic institutions in and of themselves. If that is the case, we must also explore how and whether courts engage with their own constituents in a democratic fashion. In More Democracy, Lani Guinier wrote:
Democracy is not just about voting . . . . Democracy is about participating. Participation matters. It matters because the decisions that governments make affect everyone. Respect for those decisions, including those with which we disagree, demands meaningful participation in the decision making process. People have to be able to express their preferences, but more importantly, people have to participate in the formation and the implementation of preferences. In this project, voting is a necessary but hardly sufficient condition to achieve more democracy.[25]
Under this view, the analysis of democracy and the courts cannot be cabined to the structural role courts play in a broader system. Nor can it be confined to nominal engagement of the people in the judicial process. Individual involvement is instrumental in ensuring that courts fulfill their necessary institutional role in a democracy. Yet, democratic values must also define the nature and inform the terms of that engagement.
With respect to their own internal operation, the courts in which most Americans appear on a day-to-day basis in cities and towns across the nation are, by design, remarkably antidemocratic. Although ordinary people can and do use the courts every day—to get married, resolve a traffic violation, or settle a small claims dispute—those people have little ability to influence how courts operate or challenge the ways in which court processes (distinct from underlying applicable laws) may frustrate their goals. The structure of many state and local courts makes it difficult for ordinary people to effectively engage them; the people most impacted by them have little to no knowledge, control, or oversight of their workings; and the likelihood of fair treatment very much turns on one’s access to resources. At its core, democracy demands that “all people should be treated equally before the law and should have a say in their government[; . . .] the government should work for ordinary people, rather than an elite few.”[26] And yet, the vast majority of the U.S. court system could easily be characterized as working only for those privileged enough to be entitled to or afford effective legal assistance. Democracy requires not only that courts fulfill their external or upward-facing role in a larger democratic structure but also operate democratically in their internal or downward-facing design and operation.
This Essay joins a growing literature exploring how democratic norms of access, dignity, equality, and participation do and should inform the operation of the courts—particularly the state and local courts with which many Americans interact every day. In doing so, it aims to apply a person-centered perspective to the intersection between democratic theory and access to justice. Rather than view individual engagement with the courts as a means to an end—the courts’ fulfillment of their institutional role in a democracy—it grapples with the nature of that engagement from the perspective of the people themselves, focusing on what they can expect and demand from the democratic process as citizens of the justice system.
Access to justice is often described as a systemic problem.[27] In recent years, some scholars and organizations have broken from this mold, defining and advancing the notion of “person-centered justice” and incorporating human-centered design into court reform.[28]
Person-centered justice is relatively new as a term in scholarly literature, and as Jérémy Boulanger-Bonnelly has pointed out, the term still lacks a clear, universally understood definition.[29] Yet, many have described its various components, and its underlying principles have long been embodied by those working in the field. Drawing on a wide range of sources, Boulanger-Bonnelly identifies multiple themes of person-centered justice, including collecting and relying on evidence of people’s legal needs and experiences; accessible, flexible, and interdisciplinary legal services; empowerment; and local and community-based structures.[30]
Matthew Burnett and Rebecca Sandefur, who have helped to advance and written about the expansion of community justice worker programs, describe their people-centered approach as “meet[ing] people and communities where they are” with solutions that are “targeted, timely, trustworthy, and transparent from the perspective of community members” in addition to being high-quality and accessible.[31] In brief, they explain, “[p]eople-centered justice starts with people’s actual needs and their actual capabilities for engaging with law to meet those needs.”[32] By way of example and translating the same ideas into the realm of program assessment (as opposed to program development), Tanina Rostain and James Teufel have suggested that one simple people-centered metric to evaluate the success of justice worker programs is uptake, or how often people use such programs.[33]
People-centered justice is not just a scholarly endeavor, but a subject of international policy. The United States Agency for International Development (“USAID”) has developed guidance on people-centered justice, emphasizing the importance of understanding the ways in which people experience and are impacted by legal problems before defining solutions, testing to ensure that proposed solutions work for people in practice, and engaging “ordinary justice seekers” in the reform process.[34] Similarly, the World Justice Project has explained that people-centered justice requires data that clearly depicts people’s justice needs and experiences, information and education about rights and remedies that is made available to people using the justice system, preventative strategies, and the elimination of barriers to assistance.[35]
Person-centered approaches have found their way into practice and, in some contexts—including the representation of older people and people with disabilities—even been enshrined into law. Michigan law specifically provides for “person-centered planning,” guaranteeing people with developmental disabilities “a process of planning for and supporting an individual that honors the individual’s preferences, choices and abilities.”[36] As Kathleen Harris has described:
The person-centered process emphasizes the individual’s strengths and abilities, rather than limitations. It focuses on what is most important to have a life the individual considers worth living, rather than what professionals consider is ‘best for them.’ It recognizes that what is most important in our lives i[s] not necessarily what has typically been offered in human service systems.[37]
Person-centered planning guidelines promulgated by the National Guardianship Network mandate that the person requiring planning assistance be treated with dignity and that the guardian craft a long-term care plan tailored to the individual’s unique characteristics, contributions, and relationships, ultimately providing that person with positive control over their life.[38]
As Charlotte Alexander and I have described in earlier work, making the shift from a court-centered framework to a people-centered framework requires reorientation to center the person as the primary relevant unit.[39] In a similar fashion, taking a person-centered view of democracy and access to justice would require adopting the perspective of the person interacting with the courts, rather than the vantage point of the citizenry or the nation as a whole. That person’s primary concerns likely relate not to the ways in which their involvement impacts the court’s role in the larger political structure, but to how they are treated and the extent to which they feel they were able to navigate the courts effectively. In other words, the application of a person-centered framework would focus not just on whether people function within a system, but how they do so—or, in other words, on the relationship between the institution and the people who constitute it.[40] What people receive from that relationship is just as important as what they contribute to it, and the resulting impact on society.[41] This is particularly important where the institution derives its authority from the people who use it every day.
In thinking about how people relate to and navigate the courts, and building on the literature described in this Part, person-centered justice might be best understood as an evidence-based approach that accounts for people’s needs and capacities, allows people to meaningfully engage with the court process, and prioritizes what they hope to receive or gain from the experience.[42] It is this approach that guides this Essay in contemplating what people can and should expect from their democratic engagement as constituents of the courts: justice citizenship.
The concept of justice citizenship blends the courts’ democratic underpinnings with a focus on the individuals who use the courts rather than the systemic and institutional characteristics of courts themselves. It is focused not on the role of the courts with respect to other institutions within a democracy, or on how judges and courts can act to support and advance democracy, but instead with respect to how courts relate to the people they serve and rely upon, and to whom they are ultimately accountable.
In this sense, the term “citizenship” refers primarily to one’s membership in the community of people seeking justice from the courts. We often refer to the larger system of which courts are a primary facilitator as the “justice system,”[43] and these are the people using (or forced to use) that system. By virtue of their membership in a community, citizens typically receive rights and privileges and, in turn, are expected to fulfill certain responsibilities.[44] More broadly, it might be understood to refer to one’s active engagement with the relevant community. The republican model of citizenship distinguishes citizens from mere subjects through the former’s active participation in governmental operation.[45] Jennifer Leitch has argued:
Citizenship, as it is considered within a theory of participatory democracy, requires more than voting from the individual members of society; it requires that individuals actively engage in creating and implementing the political and legal rules and processes that shape their lives. This participation necessarily entails direct deliberation, action and contribution.[46]
While this engagement may not be of the type or degree originally envisioned before modern times and the size and scope of government as it exists today, surely citizenship implies some role beyond merely being acted upon. Similarly, in the realm of the courts, the notion of citizenship cannot be limited to one’s nominal role as a litigant; it encompasses not just presence or technical engagement, but substantial engagement in the judicial process.
Building on that premise, we might understand justice citizenship as endowing the people who use the courts with distinct rights and privileges that govern their interaction and ensure their ability to engage with the government in a democratic fashion.[47] These rights are distinct from substantive or procedural rights that courts enforce as a matter of law, whether constitutional or statutory. Instead, they are rights to be applied within the courts’ internal realm and to guide the relationship between people and courts as they undertake the adjudication of external rights and duties. The notion that rules might govern this relationship is not a novel one but has to date been relatively one-sided: every day, courts impose myriad responsibilities on those who use the courts to resolve a wide range of matters relating to their lives and liberty. Yet if those people are to be seen as citizens and not just subjects in discussions of access to justice, we need a more robust and theorized understanding of what it means to democratically engage with the courts.
In the legislative and executive spheres, we exercise the right to vote to ensure that our voices are heard through our elected representatives. In the United States, the right to vote is understood as the primary and most commonly used mechanism for democratic participation.[48] We trust that the representatives we have elected will wield the power we have granted to them responsibly; if they fail to do so, we retain the ability to elect someone else in their stead. In the judicial sphere, individuals—whether unrepresented or represented by counsel—play a more direct role in the operation of government. Acting alongside judges, they are integral partners in providing the information and making the arguments that allow the judicial process to function. Their participation is not limited to selecting the people who will act, but instead they act themselves as part of the government machinery. Thus, their ability to engage with that process in an independent, informed, and meaningful manner is critical.
In his seminal work, On Democracy, Robert Dahl delineated five criteria that define the democratic process, many of which relate to individual engagement: effective participation, voting equality, enlightened understanding about relevant alternative policies, people’s retention of control over the agenda, and the inclusion of all adults.[49] In describing “judicial democracy” more specifically, Robert Hughes argued that a government is “procedurally more democratic if it permits judicial development of law and enables citizens to influence the law through the courts.”[50] Although Hughes focuses primarily on the ways in which courts can contribute to the democratic nature of government and society more broadly, he does highlight the importance of facilitating citizen participation and “enhanc[ing] citizens’ opportunities to exercise agency over the law.”[51] As Judith Resnik explains, Jeremy Bentham emphasized the need to not only “provide the public with knowledge about and enable scrutiny of various actors and institutions” but also to “facilitate participation by the non-elite” and “expand[] the means of making elites accountable.”[52]
Building on the above foundation and considering how people engage with the courts as well as the values underlying people-centered justice, I identify here three core democratic principles that should, at a minimum, define the relationship between courts and their constituents. While not an exhaustive list, they are core to the notion of justice citizenship. First, all citizens should be entitled to equal, informed, and meaningful participation. Second, in engaging with the courts, citizens should retain the right to self-determination—the ability to make independent decisions about the nature and direction of their justice process. Third, the courts should remain accountable to its citizens for applying the law faithfully and creating and implementing processes and procedures that preserve the participatory and autonomy-based values described above. In the sections below, I provide very brief sketches of each—although each requires far more exploration (and some of my forthcoming work will address the same).
These are not new concepts—and some are already woven throughout the fabric of access to justice reform. But we should be explicit about their connection and importance with respect to foundational democratic values. If we are contemplating the role of the courts in a democracy, we should think not only about the role they play as institutions, or in a broader political structure, but also about their own institutional makeup—in other words, their internal and not just their external operation.
Providing litigants with basic access to the courts means little—and can in fact be counterproductive or even harmful—without ensuring that their access is equal to that afforded to other parties, informed by relevant law and procedure, and made meaningful through the ability to understand and utilize available opportunities. To fulfill the democratic value of equal, informed, and meaningful participation, all litigants must have the tools and structure they need for not just nominal, but meaningful participation in the democratic process. This aspect of justice citizenship is already central to much of access to justice reform, and can be seen in a range of proposals including and beyond the provision of counsel, including court navigator programs,[53] simplification of procedural rules,[54] use of plain language,[55] and evidentiary reform measures that would allow all evidence as admissible and require judges to assess and apply such evidence based on relevance and reliability.[56] Although participatory reforms are often framed in terms of gaining or improving access to the existing court process, one might also envision flexing such a right to change the terms of the process and thus the nature of participation itself.[57]
In a well-functioning democracy, our ability to act as informed voters ensures that, as citizens, we can influence the workings of government. As noted above, Robert Dahl highlighted “effective participation” as an essential quality of democracy.[58] Robert Hughes similarly observed:
Whether a country is democratic or not depends on whether it offers all or almost all its adult citizens a meaningful form of participation in shaping the law. The opportunity to vote in fair elections for government leaders is one important form of political participation. But there are other forms of participation that make a society more democratic or contribute to a society’s democratic character.[59]
We don’t often think about everyday courts as playing a substantial role in “shaping the law.” But, as Kathryn Sabbeth has argued, that stems from a misinformed and circular dynamic in which the proceedings in such courts are overly perceived as simple, resulting in fewer resources and attention and thus leading to anemic law development in those same areas, feeding the underlying perception.[60] The same dynamic may incorrectly lead observers to underestimate the importance of democratic participation in such courts.
The notion of informed and meaningful participation has roots not only in democratic principles, but also in due process, and is reflected in Supreme Court precedent. In Turner v. Rogers, the Supreme Court held that even where civil litigants are not entitled to counsel, due process requires that they have meaningful access to the courts.[61] As Laura Abel has explained regarding Turner: “The Court held that a litigant does not have meaningful access to the courts if all he can do is file initial papers or walk into the courthouse door…. [F]or a litigant to have meaningful access, he must be able to identify the central issues in the case and present evidence and arguments regarding those issues.”[62] In the indigent defense context, the Court has also emphasized the importance of “meaningful access to the courts.”[63] In Ake v. Oklahoma, the Supreme Court held:
We recognized long ago that mere access to the courthouse doors does not by itself assure a proper functioning of the adversary process, and that a criminal trial is fundamentally unfair if the State proceeds against an indigent defendant without making certain that he has access to the raw materials integral to the building of an effective defense.[64]
While the argument this Essay makes is not meant to be doctrinal in nature, these cases demonstrate how integral the notion of meaningful access is to a well-functioning justice system. It transcends the supposed demarcation between civil and criminal and has guided the Court’s interpretation of due process and equal protection as they relate to the courts.
And yet, meaningful access remains more aspiration than reality. Courts with high numbers of self-represented litigants are typically characterized by high degrees of asymmetry in legal representation—plaintiffs are far more likely to have counsel and to be repeat players who know the relevant actors and processes.[65] By contrast, pro se litigants often have little knowledge of governing law and policies or the court process itself, and limited access to other forms of assistance,[66] putting them at an immediate disadvantage. While the courts should operate by and for the people, the tools needed to use the courts effectively are restricted and accessible to only an elite few. Thus, the reality is that many litigants in everyday courts cannot contribute equally to the democratic judicial process. Their citizenship is not adequately informed and, as a result, is inherently ineffective.
Participation, which should be guaranteed in equal degree to all, is not equivalent to informed and meaningful participation. To provide just one example, in a study of suburban and rural courts in Georgia several years ago, Daniel Pasciuti and I surfaced the surprising finding that cases in which an answer was filed in response to a notice of eviction were more likely to end in issuance of a writ granting possession to the landlord.[67] Delving deeper into this issue, we found that when tenants filed an answer, they often failed to make an argument that would be viewed as a legally cognizable defense; many tenants ended up admitting facts that would ultimately be harmful to their cases.[68] The structure of the answer forms did not help in this regard; some of them provided response options that did not provide a legal defense (e.g., “I was unable to pay because I did not have the money”), but appeared alongside other options that would, if proven, provide a valid defense (e.g., improper service).[69] And many of the answer forms used would be difficult for those without legal expertise to fully understand, using high levels of legalese and technical terms—one possible response option read, “[t]he instrument sued upon was executed and delivered without consideration.”[70] It is likely true that many of the tenants using these answers may not have had a valid defense and eviction was inevitable under Georgia law; yet, it is just as likely that someone who did have such a defense would never have known, or have been able to surface it through the available process. In addition, the muddled nature of some answer forms, which list legitimate legal defenses alongside and as equivalent to detrimental admissions, mask underlying legal distinctions that, were they more apparent, people might wish to challenge or change through other aspects of the democratic process. Thus, access to an answer form—or even the act of filing an answer—did not amount to the kind of informed or meaningful participation one might envision as part of a true democratic process.
The notion of meaningful participation is important not just for its potential effects on accuracy and fairness, but also its relationship to the courts’ institutional legitimacy. In writing about procedural justice, Tom Tyler emphasized that people value having the opportunity for voice not just for instrumental reasons in the short-term (or the effect on the outcome), but for expressive reasons as well.[71] Yet Tyler suggests it is also possible that while people do not necessarily expect that their participation will have short-term effects and that their voice will not always influence the relevant authorities, their broader allegiance—for purposes of this Essay, to the justice system—is grounded in a belief that their views are being considered and that, over time, they will “receive a reasonable level of positive outcomes from group membership.”[72] Given that one’s participation is more likely to be considered where it is informed and germane to the judicial process, it would seem that meaningful participation is critical from a procedural justice perspective as well. Yet, as articulated above, equal and meaningful participation should not be viewed as something courts discretionarily provide in order to bolster their legitimacy in litigants’ eyes; rather, it should be viewed as a foundational element in the relationship between a democratic institution and its citizens.
Self-determination, for purposes of this Essay, encompasses the ability to translate one’s values and priorities into legal terms and use the legal system to achieve those goals.[73] This includes the ability to decide when, where, and how to exercise one’s rights or utilize available procedures—or to refrain from doing so. Equal, informed, and meaningful participation is a prerequisite for self-determination—without knowledge and understanding of relevant laws and policies, litigants cannot exercise independent judgment and the right to direct their own journey through the justice system.
In Models of Democracy, David Held highlighted the “principle of autonomy”—a critical element of self-determination—as key to democracy.[74] Drawing on various strands of political philosophy, he identified autonomy as a common thread[75] and explained that in the liberal tradition, “the state exists to safeguard the rights and liberties of citizens, who are ultimately the best judge of their own interests; . . . the state must be restricted in scope and restrained in practice to ensure the maximum possible freedom of every citizen.”[76] He tied the notion of autonomy to that of informed participation and Dahl’s democratic criteria (described above), arguing that “[i]f citizens are unable to enjoy the conditions for ‘effective participation’ and ‘enlightened understanding’, then it is unlikely that the marginalization of large categories of citizens in the democratic process will ever be overcome, or that the vicious circles of limited or non-participation will be broken.”[77] More generally, Held defined the principle of autonomy as allowing people to be “free and equal in the processes of deliberation about the conditions of their own lives and in the determination of these conditions, so long as they do not deploy this framework to negate the rights of others.”[78]
Other scholars of democratic theory have also emphasized the concept of self-determination, suggesting that individuals must retain the ability to express independent views, even when they contradict the will of the state. Robert Hughes wrote:
Opportunities for effective political agency may be important in part for instrumental reasons; a government that listens with an open mind to citizens’ arguments may be more likely to produce just law. But opportunities for effective political agency also matter for a non-instrumental reason: they enable citizens to fulfill a duty of conscience. Citizens with sensible views about what justice requires have a moral duty to try to make the law conform to their views even when they are mistaken . . . . Democratic governments should enable citizens to fulfill duties of conscience.[79]
Thus, a court system might be measured not only by how it fares in terms of substantive outcomes or procedural fairness, but more specifically by the extent to which it enables litigants to pursue their own defined goals.[80]
Hughes’ description of political agency invokes a core notion of procedural justice: people value having voice in a process not only because of its instrumental effects, but because of its inherent expressive value.[81] Yet, self-determination is not only about having a voice; it also includes the ability to use the process towards one’s own ends. As Lani Guinier wrote, democracy is not just about voting or expressing one’s preferences, it is also about being able to form and implement those preferences—perhaps even to shape the range of options.[82] To have that capacity requires a certain level of understanding about how the process works and the ability to express oneself as part of that process (i.e., meaningful participation) as well as a system that allows the individual to manifest that voice through available (legal) tools and pathways. In other words, self-determination is not limited to whether or to what extent the relevant decisionmaker allows the individual a voice or whether that voice is considered, both of which leave the individual in a passive capacity, but also about the individual’s ability to develop the context and dictate the terms on which the decisionmaker will render judgment. Self-determination does not necessarily imply that one must navigate the judicial process alone; the complexity of most cases will require legal expertise that, if not possessed by the individual, must come from some other source. But it does require that, even when necessary assistance is provided, the individual remains in control of their own legal destiny.
How might the principle of self-determination manifest in access to justice? Take, for example, active judging models, which many believe have capacity to increase access to justice. Because self-represented litigants often lack the expertise needed to navigate the court process alone, some scholars have called for judges to play a more active role in eliciting relevant information and guiding in-court proceedings.[83] Although this strand of reform is understandable given current shortcomings and the empirical landscape in such courts, it may raise some concerns with respect to self-determination. At what point does a judge’s active solicitation of certain evidence or the choice to frame a legal issue in a certain way, or the judge’s choice to ask certain questions and not others, potentially infringe on the litigant’s right to self-determination?[84] And how, in such a scenario, can any judge infer the calculus a litigant would apply in deciding whether or when to raise a specific issue? These are incredibly difficult questions, and I do not suggest here that they should present a complete bar to active judging. Yet, in addition to debating how reforms like active judging weigh on values such as judicial neutrality and impartiality,[85] those contemplating court reform should also weigh any possible infringement on—or reconciliation with—the individual’s right to self-determination.[86] Thus, even where judges engage in more active questioning to assist pro se litigants, they should be mindful of surfacing and facilitating rather than supplanting or displacing the litigant’s own goals and, where the individual wishes to do so, allowing the litigant to retain decisional authority.
One more specific example of where self-determination might manifest is in the context of settlement agreements and, more specifically, court approval of such agreements. In discussions of access to justice reform, one area of concern is the tendency of some high-volume courts to funnel self-represented litigants into informal negotiation sessions with the opposing party, who is much more likely to have prior court experience and legal representation. Given this asymmetry, the proposed settlement agreements resulting from such discussions may be unfair or based on a misunderstanding of applicable law. One possible response to this dynamic is for courts to play a more prominent role in overseeing and reviewing such agreements; perhaps even the ability to reject them where, in the judge’s view, they seem unfair, or one party has agreed to accept far less than that to which they are entitled. Although appealing from an objective perspective informed primarily by concerns about fairness and accuracy, such an arrangement might also be seen as infringing on the litigant’s autonomy.[87] As a matter of court policy, it may be simpler to require such assessment by judges on the back end than to require or ensure a base level of litigant knowledge and understanding on the front end, either through court-provided or external assistance; yet we should also recognize that the former solution sacrifices some degree of self-determination, while the latter attempts to preserve it.[88]
The shift to judicial and procedurally focused solutions is understandable in light of pervasive failures to provide a sufficient supply of legal assistance.[89] However, where procedural elements are incorporated into the system itself, rather than relying on individual litigants to raise and argue them, such arrangements should still account for self-determination. This might mean, for example, that a form designed using checkboxes presenting the relevant array of available legal options must also provide some explanation as to the ramifications or consequences of checking any one particular box. It might also mean that judges engaging in more active judging must obtain some form of consent or take steps to ensure that they are acting in line with the litigant’s underlying goals. Ultimately, court reformers will need to balance the temptation to use active judging and other models that attempt to shift burdens created by laws and procedures onto the court with the democratic requirement that litigants retain the ability to use those same laws and procedures in service of their own objectives.
The government draws its authority from the people and, in that respect, must also be accountable to the people for how it exercises that authority. This should be just as true for the courts as it is for other government entities. In other branches, and even for some judicial actors, accountability is achieved through the election process. Although that process is imperfect—given the lack of information made available to the public about the courts—it provides at least some means for recourse. Yet even then, the functioning of the courts can rarely be traced to one actor and is more likely to be tied to that actor’s substantive decisions than any policies they have imposed to govern the court’s operation.
Calls made by scholars for increased court public access and transparency echo this same concern. Judith Resnik and Dennis Curtis have emphasized the importance of public adjudication and open courts in considering the role of courts in a democracy.[90] In separate work, Resnik has argued that open courts are critical not only to “educate the public and discipline the state,” but also because participatory parity is required for the dialogue that takes place in courts and leads to changes in the law.[91] In Republican Citizenship, Richard Dagger wrote that the nature of government proceedings as open and public is essential to guard against corruption and to enable the broader citizenry to engage in public debate that gives shape to the rule of law.[92]
These arguments relate primarily to the role that courts play in a broader political structure and suggest that, for that structure to be democratic, the public must have access to the courts and what transpires within them. In other words, true public participation is vital to retain the courts’ democratic character. This same principle should translate to what individuals can expect from their experience, or what democracy requires of people’s day-to-day engagement with the courts.
Although not explicitly invoking the democratic frame, the Pew Charitable Trusts’ Civil Court Modernization Project provides a set of responsive recommendations.[93] The Project aims to adapt courts that were designed to be used almost exclusively by lawyers to the current landscape, in which in most users do not have an attorney.[94] One of the core principles of the Project is openness, defined primarily by “collecting and using data intentionally to increase transparency, effectiveness, and equity.”[95] Pew’s recent report suggests that increasing openness will help build public trust and bolster courts’ institutional legitimacy, allow court users to more easily access information about their cases, allow external researchers to obtain and analyze court data, and retain public (rather than third-party) control over court data and information systems.[96]
For the open and public nature of courts to have any real import, citizens must be able to not only obtain information but also act based on what they observe in a public forum; people-driven accountability provides a means to close the loop. Thus, justice citizenship requires that people have channels to provide feedback when courts fail to provide them with the ability to meaningfully engage in or to direct their justice process. Such mechanisms could take a variety of forms, ranging in their capacity. Courts might conduct internal audits, user surveys, or focus groups to determine the ease with which current users are able to use court procedures effectively and propose correlating reforms. For example, the Superior Court of Quebec recently created the Montreal District Citizen Collaborative Committee, a working group composed of citizens, service providers, experts, and judges that “aims to better understand the expectations, experiences, and challenges” of court users and subsequently implement changes to “improve the accessibility, efficiency, and quality of services offered.”[97] As suggested above, courts could increase data transparency and access, allowing ordinary users to observe the range of outcomes in particular cases or the number of default judgments in a particular court. This would help people to have a better understanding of how the courts are operating, what they can expect from the system (including typical outcomes), and the most critical areas for intervention through other political (legislative) channels. Courts could also adopt more widely the citizen review board model that has appeared in both the child welfare and policing contexts.[98] Under such a model, ordinary citizens could play a role in investigating complaints or regularly reviewing court procedures and decision trends, providing direct democratic oversight by the people.
What value is there in conceiving of courts as internally democratic institutions and, more specifically, focusing on how and whether they foster democratic engagement by their own citizens? Democracy is suffering both nationally and globally, yet many state and local actors are still well positioned to advance democratic values. In addition, I would argue, many of the themes emphasized herein—including self-determination and accountability—echo in current political rhetoric. Justice citizenship may offer a framing to draw in people who are not otherwise enmeshed with the particulars of court reform but should care about how courts operate.
Rather than abandoning democratic ideals, this moment provides us with an opportunity to demand more democracy, as Lani Guinier wrote years ago.[99] We should interrogate not only our larger government structure, but the ways in which we are treated by such institutions and the role we play as the people who govern them. In assessing existing court policies and considered reform measures, these democratically grounded values should be weighted alongside systemic outcome- or process-based values like fairness, accuracy, and efficiency.[100]
Every election season, there are impassioned calls for all of us to vote and ensure that our voice is heard. This government is ultimately our government, and our ability to exercise that basic right of citizenship should not be limited to these sporadic moments of democratic urgency. Our ability as citizens to exercise informed judgment in our self-directed course through the justice system, and to hold that system accountable to its goals, is and should be viewed as a parallel means to ensure that the government remains by and for the people.