While discussions about the current state of democracy have reached a fevered pitch, its application to the internal workings of courts, especially at the state and local levels, has been largely overlooked. In the introduction to her article “Justice Citizenship,” published in South Carolina Law Review’s recent symposium issue, Vanderbilt Law Professor Lauren Sudeall emphasizes that, as is the case for the executive and legislative branches, the relationship between citizens and the courts should be guided by democratic values.
Scholars focused on access to justice, she notes, often focus on courts’ institutional role in a larger democratic structure, while spending 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.” Inherent to democracy is the understanding that the government exists “of …, by …, and for the people,” yet that understanding is rarely applied in thinking about how courts treat the people who use them every day. Conceiving of each individual as a “citizen of the courts” suggests they are entitled to a set of rights and privileges while being expected to fulfill certain responsibilities.
In defining the concept of “justice citizenship,” Sudeall identifies three key values, based on commonly recognized democratic principles, that can and should be used to assess court systems and guide reform efforts:
Equal, informed, and meaningful participation
Fulfilling this democratic value requires that all litigants have equal access to the courts—including access to information about relevant laws and procedures—and the practical ability to understand and utilize available opportunities. Sudeall points out that many existing access to justice reform proposals have already embraced this aspect of justice citizenship, including court navigator programs, use of plain language, and simplification of procedural and evidentiary rules.
Self-determination
Sudeall describes this pillar as the ability to exercise independent judgment and direct one’s own journey through the justice system. Self-determination allows litigants to decide the terms on which they exercise (or refrain from exercising) their rights or use available procedures. Advancing self-determination means, for example, that even under an active judging framework—where judges play a more active role in eliciting information and guiding in-court proceedings—judges should focus on increasing litigant knowledge and understanding and determining and prioritizing individual litigant values, rather than being guided by an objective or court-driven view of what is best in each case.
Accountability
Transparency and public access to information are often lacking in the court system, reducing its accountability, even in jurisdictions where judicial actors are elected. Yet, even where courts maintain their open and public nature, true accountability requires the ability for citizens to act on what they observe—in part to enforce other aspects of justice citizenship. Mechanisms to collect and incorporate feedback from court users, such as focus groups and citizen review boards, provide citizens with a means to ensure that courts are providing them with “the ability to meaningfully engage in or to direct their justice process.”
In a time where democracy is “suffering both nationally and globally,” Sudeall argues that justice citizenship provides an actionable opportunity to advance democratic values beyond the ballot box.
“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.”
“Justice Citizenship” is published in the South Carolina Law Review. Lauren Sudeall is the David Daniels Allen Distinguished Chair of Law and Director of the Vanderbilt Access to Justice (AtJ) Initiative at Vanderbilt Law School.
