When I first began to think about this paper I wasn't sure just how much could be said. A snap judgment of public understanding of the American judiciary (backed by a considerable amount of polling data) suggested that it was minimal at best. As for public attitudes, the same data suggested that they were effervescent, transitory, and focused on high profile issues rather than on the institution of the judiciary itself. The challenges to society, therefore, would seem to be so formidable and so discouraging as to reach beyond the scope of rational discussion.
Much, however, can and perhaps should be said about a topic so important to the future of liberal democracy. There are many ways of approaching it. Rather than adopt a general and abstract look at it from a multi-national perspective, I have opted to concentrate on the American situation, with some observations that are applicable to other societies as well. To be sure, a comparative, multi-national study raises many fascinating questions, especially within the North Atlantic community of democratic countries, whose societal patterns of multiculturalism, traditional concepts of the nation-state, and constitutional roles of the judiciary vary greatly. In some respects, Europe's recent experiments in constitutionalism, especially in the area of human rights, raise more interesting issues than does American constitutionalism. In many instances of the latter the explicit powers of judicial review reach well beyond that of the United States Supreme Court and charters or bills of rights encompass more than our provisions for ordered liberty--embracing guarantees of economic, social, and cultural rights as well.
Issues such as legal guarantees of desired ends as well as desired processes in pluralistic societies or the tension between collective and individual rights are pertinent to the future of democracy. From the Canadian dilemma of linguistic separatism to the fledgling adjudication of human rights within the European Union, the challenges of multiculturalism are testing the world's democracies and will continue to do so in the years ahead.
In some respects, the American and European situations are similar. A look at recent multinational opinion polling suggests a rough commonality of attitudes on law-related issues. The current Index to International Public Opinion (Hastings) reveals a near universal concern with law and order issues: crime a major concern in most Western countries; the degree of public confidence in the institutions most directly related to security and order (the police, prosecutorial offices, and the military) high relative to other institutions, courts and institutions of government relatively low in most instances. Despite the high profile of human rights in modern contemporary European constitutionalism, polling data suggest that public opinion gives the protection of minority rights less weight on the scale of government priorities than concerns affecting personal security. It seems that among the Western democracies the Spartan rather than the Athenian virtues now occupy center stage.
The nature of the American judiciary and multiculturalism, however, are different from their European counterparts in several respects. American "exceptionalism" has taken on a new meaning in this era of pluralist democracy and human rights. Though we like to think of ourselves as a young country, we are the most gentrified of all the major democracies with written constitutions. Our constitutional framework, based upon a separation of powers, is out of step with the parliamentary arrangements of most representative governments. Historically, our pluralist society is fundamentally different: derived not from conquest or the aggregation of discrete nationalities, but rather from immigration freely undertaken (our African-American heritage, of course, being the singular exception to this rule). With the transmigration of peoples in today's international economy immigration, of course, has become increasingly the major catalyst of pluralism in other nations as well. As I observed in a paper delivered at another of these conferences four years ago (Atherton), the United States is an anomaly among the nation-states of the world: fitting neither of the classical models of modern statehood--neither the French concept of a utilitarian state governing a polity of equal citizens, united perhaps by ideology and not defined by subcultures, nor the German model of the volk nation, grounded in a common culture. Instead, we have taken elements of both: "a state...united by universal principles, but also a nation, comprised of different cultures, and always in pursuit of a common 'peoplehood'" (ibid., 66-67).
In that paper I explored in some detail the causes, character, and impact of multicultural changes, especially recent immigration, on American society and values and as revealed by such issues as affirmative action, welfare entitlements, bilingual education, and Americans' never-ending quest for a common identify and unity amidst difference. As the paper suggested, the ideological manifestation of multiculturalism---the ethos of ethnic recognition, the belief that roots are destiny, what Charles Taylor has called the "politics of difference" (Taylor, 1992, 38)-came at a particularly difficult time for the nation, with waning confidence in America's governmental institutions and waning self-confidence among the nation's core or "Anglo" culture regarding the legitimacy of its values.
From the perspective of four years later, the situation hasn't change much, though I am inclined to believe I then exaggerated its bleaker aspects. Annual immigration (i.e., legal immigration) is down some 50 percent since beginning of the decade (Bureau of Census, 10), though the long-term impact of immigration in recent decades remains the same. We are less a Euro/North-Atlantic culture, ever more inclined to the "Tex-Mex" Southwest and Pacific Rim. Asians are now the largest group of legal aliens, Hispanics continue to be the largest group of illegals. The 1990 Census counted 51 separate national ancestry and ethnic groups, and the number of cultures, languages, and dialects is even greater. Fourteen percent of American residents speak a language other than English in their homes (ibid., 53). By the year 2050 Hispanics will be our largest minority group, representing a quarter of the country's population. The United States ranks third among developed countries in fractionalization. Public worries about its significance have apparently increased. One recent poll suggested that fully half of Americans would support a five-year moratorium on legal immigration (Golay, 126). Multiculturalism seems to have receded as a hot topic of controversy. (Indeed, one may legitimately wonder how far it ever reached beyond the world of postmodernist and deconstructionist academics, grantmakers, museum directors, and educators.) Its ideas, however, can still be found among the leaders of political interest groups as a means of assertiveness and confrontation.
All public issues, in Tocqueville's oft-cited observation, sooner or later become legal issues. It would be fair to say that the American judiciary has borne the brunt of problems arising from these demographic and related changes in the last half century, which have confirmed the wisdom of Tocqueville's remarks well beyond his own imaginings. And the stakes have increased since Tocqueville's day, with growth of public sector and power of government, the expansion of the court's involvement in areas of public policy. The dramatic growth of media coverage and special interest groups in the last fifty years has also amplified the political ramifications of judicial action.
The American judiciary, at both the state and federal levels, finds itself overburdened and under siege: caught in the vortex of increased caseloads, rising public expectations, and limited resources. A study of the future of the state judiciary (which handles over 90 percent of cases in the United States) was undertaken about ten years ago by George Washington University's Program on Science, Law, and Compensation (Zweig). Project staff interviewed judges, attorneys, and other legal experts. A strong consensus of opinion suggested that the quality of justice in the United States was and would be increasingly at risk from the impact of changing social and economic conditions. Access to the courts, the study found, is narrowing for most Americans (in large part because of financial reasons) at the same time that public expectations of the judicial system have risen. Workload and comparatively low compensation are driving many of the most talented jurists from the bench. Absent reforms, the study concluded, American justice may well develop into a two-tiered system, with public, assembly-line justice for the poor and private, customized dispute- resolution arrangements for the rich.
Expansion of both the federal and state judiciary has been unable to keep up with the rise in caseloads, which have increased at a dramatic rate in the last 50 years. In federal district courts case filings climbed from 19 per 1,000 population in 1900 to 80 per 100,000 in 1980 (Lieberman, 3). In 1981 82 million cases were filed in state trial courts, a jump of 22 percent in civil litigation and 31 percent in criminal litigation in only five years (ibid.).
The causes are many, including the perennial problem of the "law's delay." Respondents to the George Washington study noted some 59 societal impact factors, of which the drug problem, poverty cycles, and the weakening family structure were considered most important. This last factor signaled the judicial system's expanded role as a "dumping ground" for social ills hitherto dealt with by family, church, school, and other institutions. Increasingly, the nation's courts are being clogged by the "courtification" of petty disputes not requiring and in many cases not benefiting from formal litigation.
In most recent years the court overload has come primarily from drug-related crime. Though politically popular, the "War on Crime" and other "get tough with crime" programs (e.g., "three strikes and you're out" laws) have overwhelmed the judicial system (not to mention state and federal prison systems, both of which are now occupied well above optimum capacity). These anti-crime initiatives have poured billions of dollars into police work, far less into the courts. By 1990 one-third of all court commitments were drug related and 75 percent of all criminal prosecutions in Los Angeles (Marcus, 224).
It is worth noting that the George Washington University study revealed only two explicitly ethnic factors among the long-term problem areas for America's state courts: the increasing numbers of Hispanics and Asians among the population. The concern (which was far more focused on the former group) seems to have had less to do with crime (though both groups, like African Americans, have disproportionately high representation in the nation's criminal population) than with linguistic and equal protection concerns in the years to come.
In today's world, however, the judicial overload is very much a factor of the high degree of correlation between certain ethnic groups and poverty, drugs, and social dysfunction, all of which have found their way into the courts of law. The litany of dismal statistics has become a familiar one. As of 1991, 65 percent of state prison inmates belonged to racial or ethnic minorities (ibid.). Approximately one in five young African American males are currently in the corrections system (Sheley, 2282). The 1990 Sentencing Project found that more black men in their 20s were in the criminal justice system than the number of black men of all ages in higher education (Marcus, 237).
Though ethnic pluralism has long been associated with the etiology of crime (and a favored explanation of the violence that has always characterized American life), the connections between ethnicity, race, crime, and criminal justice are complex and much debated. So, too, is the extent to which the judicial system has victimized minorities, particularly in the areas of conviction and sentencing. Even discounting the much-publicized problems between police and minorities, there is certainly sufficient evidence to justify the profound distrust of legal institutions among the latter. The high correlation between minorities and crime is diminished when white-collar crime is factored into the equation. White-collar crime receives less commitment of resources and less severity than "street crimes"of the urban ghetto. And race, especially that of the victim, remains a determining factor in the outcome of death-penalty cases. Much attention of late has been directed at the disparities in punishment between drug trafficking in crack and cocaine, with the far heavier penalties falling on the former (most common in the inner cities) than the latter. Perhaps the most dramatic evidence of racial and class bias has been the failure of the judicial system to assure due process. Scarcely a fraction of the funding largesse devoted to the "War on Crime" has gone to the support of public defense programs, whose services in recent years have been overwhelmed. Public defenders in most states are carrying well beyond their recommended maximum load of cases (see Marcus).
Joseph Sheley, one of the leading and most dispassionate criminologists, takes an almost Marxist position in pointing out that perhaps the deepest cultural biases within the criminal justice system are structural. Criminal justice agencies, he maintains, are political organizations and have, historically, shown deference to the economically and socially most powerful segments of the community. The law's primary obligation, he reminds us, has been to protect these preeminent interests and to control the "problem population" (Sheley, 2287). Such has always been the case, whether that "problem population" has been the Irish-Americans of the 19th century (from the control of whom the phrase "paddy wagon" derived), the Italian-Americans of the early 20th century, or blacks and Hispanics today.
In the end, Sheley argues, law enforcement is the big loser because-whatever marginal successes it may have---it is fundamentally incapable of solving the problem. The root structural causes of crime-economic, social, and educational-are beyond its mandate (ibid., 2290). Despite recent successes in reducing the crime in major urban centers, what the late American attorney, Edward Bennett Williams, said of the criminal justice among the marginal in our multicultural society remains in large measure true today:
The criminal courts of troubled urban America are failing wretchedly. Like scarecrows put in the fields to frighten the birds of lawlessness, tattered and unmasked from neglect, frightening to no one, they have become roosting places for the crows. To the innocent, to the victims of crime, to the witnesses to crime, to the illiterate, the uneducated, and the poor, many of our big city criminal courts are a sham and a broken promise. (Quoted in Seymour, 78)The devastating effects of both crime and crime control upon minority communities has led some of their leaders, including (of late) a law professor at George Washington University, to seriously suggest jury nullification as a means of dropping out of the justice system and allowing the local communities to solve problems on their own terms.
Which brings us to the O.J. Simpson trials. With the perspective of a generation or two from now this episode of the fin de siecle will cry out for a historian to do it justice, within the broader context of American history. Just as the Dreyfus affair did for French society a century ago, the Simpson trials provide us with a prism through which to examine nearly all the salient features of American life in the late 20th century-not simply the details of a brutal murder trial and civil suit, but our society's media, sports, and entertainment cultures; its preoccupation with drugs, sex, and violence; its racial and religious prejudice; the disparities of wealth and poverty; the instant profiteering and commercial hustle.
The resolution of the first trial and the reactions to it provided one of those rare moments of truth, the kind of moment we nurture long afterwards by recalling when and where we first learned the verdict. (Some 120 million people witnessed the reading of the verdict on television.) The possibility of a guilty verdict and with it a reaffirmation of the unifying power of the nation's civic religion-the sharing of common democratic values-turned suddenly into the nightmare of an ugly racial divide. Many in this country and indeed many elsewhere were dismayed by not merely by the verdict, but by the manner in which the trial was conducted. As a public relations showcase of the American judicial system, the Simpson trial proved a disaster. There were immediate calls for the abolition or drastic reform of one of our oldest legal institutions, the jury. It didn't seem to matter that for many obvious reasons, the Simpson trial (or any criminal trial of any length or expense, for that matter) was scarcely representative of the contemporary judicial system, or that the numerous polls suggesting the deep racial divides elicited by the case may have had less to do with O.J. Simpson than with larger issues of justice in this particular multicultural society. The trial became a kind of metaphor for our deepest concerns: blacks' entrenched mistrust of the judicial system; the white majority's fears of violent crime among. And the shock of the trial's outcome and aftermath to public confidence in the judicial system called into question the very legitimacy of that system.
From whence does that legitimacy come? To whom and in what fashion are our judges and courts accountable? What is their constituency? These are difficult questions, which invite many different answers. Judges who are elected or who are subject to recall (as is the case in many of America's state judiciaries) are in a democratic sense accountable to the electorates in which their jurisdictions exist. The range of positions on judicial accountability range from a delegation function (a view endorsed especially among the less informed in public matter), requiring that judges act positively upon the wishes of the majority who elected them, to that of complete judicial independence. The evidence suggests that most voters in judicial elections favor a "stewardship" conception of the judiciary, independent of the public's whims and wishes, but mindful of their concerns (Sheldon, 243).
And what of those who sit on the highest tribunal in the land, to whom or what are they accountable? Their appointments, of course, arise from presidential nomination and senatorial approval. Congress may impeach and try them or limit the scope of their jurisdiction (both powers rarely used). But such constitutional devices serve more as checks than as lines of accountability. Some would argue that judges are accountable, in one form of judicial review or other, to the Constitution. The American historian and political theorist Gary Wills has taken this position one step further to suggest that the Supreme Court is the most democratic of the three branches of the government because of its primary accountability to the state ratifying conventions, which sanctioned the Constitution in the first place (Wills, 134).
Over the years, however, the source of the Supreme Court's legitimacy has usually been sought elsewhere, in what Justice Frankfurter described as "that impalpable but controlling thing, the general drift of public opinion" (quoted in Murphy, 1023). The subtleties of that relationship have long fascinated legal scholars and social scientists, especially in the last sixty years as the Court has begun to open itself more to media scrutiny and the assessment of public attitudes has become more refined. The subject, however, remains a murky one. Public opinion can be defined and sampled in the context of different types of constituencies, from random surveys of mass opinion to thorough assays of informed or interested focus groups, from crude snapshot samplings of top-of-the-head reactions (which constitute most of the well publicized media surveys today) to more sophisticated attempts to measure underlying values, attitudes, and degrees of saliency. It is probably with good reason that the Supreme Court, though frequently citing the importance of public opinion in its decisions (e.g., in cases involving free speech) has thus far been reluctant to acknowledge the evidentiary value of such assessments.
Broad samplings of public knowledge of the judicial system certainly provide scant encouragement. Numerous well-publicized surveys in recent decades have documented the dismal state of civic literacy among most Americans. We may evidence strong opinions on many constitutional matters and court cases, but as a people we seem to have little knowledge or understanding of the institutions responsible for handling them. A National Law Journal/Lexus poll undertaken in anticipation of the bicentennial of the first meeting of the U.S. Supreme Court found that less than one-fourth of those surveyed knew how many Supreme Court Justices there were. Two-thirds could not name a single one. Only eight percent could name the Chief Justice of the United States (Coyle).
Moreover, the NLJ/L and other polls also suggest that the public's basic understanding of many issues does not always correspond with the intensity of its opinions. A study conducted two years after Roe v. Wade revealed that only 45 percent of American men and 48 percent of American women had ever heard of the 1973 decision and had even a basic grasp of its overall effect (Adamek, 409). The results of the 1990 NLJ/L study revealed that a substantial minority of Americans believe that the Constitution explicitly guarantees the right to privacy; 60 percent of those sampled believed that as a result of the (then) recent Court decision in Webster (1989), states had the right to outlaw abortion altogether (Coyle). Much of this misperception, I would argue, also stems from the judiciary's tenuous relationship with its constituency. Distancing itself from the political intake of its decisions, the Supreme Court accedes to the media, and the media, in turn, rely heavily on the myriad of public advocacy groups, whose spokespersons stand all too ready to put their own partisan "spins" on the Court decisions at issue.
Measures of public confidence in the judiciary invariably reflect shifting patterns of enchantment or disenchantment among various groups, depending on the issues. I mentioned at the outset that polls suggest a relative lack of confidence in the court system in the United States, compared with similar ratings in Europe. It is true that most polls suggest a significant, long-term drop in respect for the Supreme Court since the 1960s. But the same slippage in confidence and respect can be found with regard to the other branches of government as well. A 1987 NORC assessment of public confidence in the nation's principal institutions revealed that the Supreme Court's rating of 37 percent was low compared with earlier findings, but well above the 19 percent accorded the executive branch. Congress, in that same study, received only a 17 percent positive rating-and the dubious distinction of being even less esteemed by its constituents than then Soviet premier, Mikhail Gorbachev (Corbett, 11).
Correlations between Supreme Court cases and public opinion reveal no significant patterns. One of the most distinguished experts on the subject, Thomas Marshall, found that court decisions with a high public visibility split about 50-50 in their correspondence with public attitudes. Nor were there significant correlations with various social, political and ethnic groups. The percentages for blacks and whites differed on certain volatile issues, but did not vary greatly in general approval ratings-suggesting a cross-cutting of attitudes and shifting allegiances among the various subgroups of society (Marshall, 326). Rarely, Marshall noted, is the Supreme Court confronted with a case whose resolution threatens a fundamental cleavage in the country. Divisive as they were, the early civil rights decisions polarized only one region (the South). Though evidencing a similar degree of concern with women's groups in matters of affirmative action, African American and Hispanic opinion is generally more conservative on social issues such as abortion and school prayer.
The rejection of Robert Bork's nomination at Supreme Court Justice nine years ago offers an interesting example of the way in which divergent attitudes can sometimes coalescence to affect the selection process of a Court nominee. The defeat of a nomination made by a popular president came about largely because it aroused the ire of the Supreme Court's most supportive constituencies in recent decades: minorities who favored the Court's positions on civil rights and women's groups with a stake in the 1973 decision on abortion. Opinion on these issues commanded large (if not always majority) percentages, as well as high degrees of salience. Concerned interest groups proved sufficiently strong to mobilize public opinion generally-which rarely turns on a single issue, but which had evidenced generally in recent decades a rising support for the right of privacy-to turn against the nomination (Page, 1027; Murphy).
Conversely, the ability of Supreme Court decisions to alter public opinion should not be exaggerated. Our popular mythology suggests otherwise, emphasizing the Court's role in leading and educating the citizenry-the Justices described by Eugene Rostow as the "inevitable teachers in a vital national seminar" (quoted in Parry, 112). At least in the short run this proves not to be the case. Public opinion, now as well as before the era of mass communications, is in the nature of a minefield: episodic, volatile, and more often than not negative. The studies by Marshall and others of the impact recent court decisions suggest that the shift in opinion is minimal and tends to be negative. Again, however, these findings cannot discount the role of the media and special interest groups in failing to present the results of court decisions accurately. And it appears to be true that court decisions serve as a catalyst to political pluralism. A Supreme Court decision in 1986 upholding the application of state laws against sodomy served to energize the gay community. Similarly, the Court's decision in the 1989 abortion ruling provided a tonic for women's groups.
More longitudinal studies might confirm the long-term effect of the judiciary in its rulings, particularly in the interplay between more informed and less informed publics. Certainly, the Supreme Court's rulings of forty years ago in the area of civil rights have had a role in the transformation of American values of tolerance and equality during the years since. As Alexander Bickel observed in The Supreme Court and the Idea of Progress (91), a court decision is only the beginning, not the end, of the educational process.
In the drive for equal opportunity for women and minorities, the issues of which have shaped so much of the nation's legal and political discourse in recent years, the claim has made that a judiciary more broadly representative of contemporary society will only enhance public confidence in the bench. Common sense might suggest the wisdom of this contention, but there is little hard evidence as yet to confirm it. The question turns, of course, on the meaning of representation. What is representative? Symbolic representation? Critical mass? Demographic correspondence?
In any case, this is one area on which the more ideological manifestations of multiculturalism-the politics of difference, the primacy of race, gender and ethnicity in shaping an individual's attitudes and judgment-have focused.
More than the executive or legislative branch of government, the judiciary has provided an easy target for multiculturalist attack. If the latter desired an ideal representative of the hegemonic culture of "dead, white males," it was the grey eminences in black robes. If lawyers, as Tocqueville observed, formed America's natural aristocracy, the judges of the highest benches were its nobility: largely drawn from the upper echelon of American society, overwhelmingly Protestant, with the "high Protestant" Episcopalians and Presbyterians disproportionately represented the further up the judicial ladder one looked. And at least until recently, occupants of the bench were elderly, with scarcely a third of federal judges appointed before the age of 50. Moreover, the judiciary was grounded in a learned profession, admission to which was not easy. Until thirty years ago, it was very much a closed union shop.
Drawing upon the heritage of legal realism and a considerable amount of research by behavioral scientists in recent decades, attacks on "pluralistically ignorant courts" have made a great deal of bias and insensitivity on the part of judges and unrepresentative juries, as well as the social and political contexts of judicial deliberation. In today's pluralist society it has become difficult to advocate the traditional or purist view of the law and lawgivers as somehow insulated from partisanship and subjectivity. Few today could take seriously the words of a 1941 newspaper editorial, which claimed that "once a man is confirmed for life in the lofty recesses of the United States Supreme Court he is no longer an ordinary citizen-he should be the incarnation of EXACT AND IMPARTIAL JUSTICE uninfluenced by the clamor of controversy that divides the people" (quoted in Davis, 148). Recent public opinion polls suggest that most Americans agree with the former director of the National Organization of Women that the "justices are all political animals, and they do understand political opinion" (ibid., 145). Popular demonstrations by interest groups in front of the U.S. Supreme Court have become a familiar part of the American political scene.
The Simpson trials and other racially charged trials (e.g., the trials of the Los Angeles policemen for the Rodney King beatings) have sharpened the issue of the jury's role in a multicultural society as well. The increasingly high profile of "jury consultants" in the legal process symbolizes the new importance of behavioral studies to the law. Traditionally, the jury has been the most democratic institution within the Anglo-American legal system, whose "sense of the neighborhood" through the centuries has provided a check upon abuse of power by the state. But an equally traditional value has held that the jury should represent due deliberation, reflecting a common ground of impartial and sober judgment, based upon shared values. Of late, the ideals of a representative and a deliberative jury have come into conflict, under the pressures of our pluralist society. The tension has been intensified by the courts themselves, which in recent decades have ruled that criminal juries must be representative of the communities in which the crime took place and that their selection should represent a "fair cross section" of the community. Evidence of under-representation of recognized minorities has become valid grounds for invalidating jury verdicts.
The increasing presence of the media in trial cases, a right reconfirmed by the Supreme Court in recent years, has also contributed to the politicization of the jury by emphasizing in its coverage of trials the ethnic composition of juries and its potential for coloring decisions. Post-trial press conferences have become a familiar event in high profile cases (Nunn).
The question of what value diversity brings to the judiciary-or any other institution in our society-goes to the heart of America's civic culture: the nature and extent of its capacity to unify a pluralistic society, the role which the hyphen plays in determining the conduct of Americans from many backgrounds but on common ground. Those who stress the importance of ethnic, racial, or gender background and experience walk a thin line between a realistic appreciation of the divergences and subjectivities of human behavior on the one hand and an endorsement of the "politics of difference" and a delegative understanding of representative government on the other. In a recent article in the New York State Bar Journal, an advocate of greater representation of women on the state's judiciary pointed quite correctly to the major disproportion which still exists between the size of the pool of female attorneys in the state and the number of women judges. But instead of couching her argument in terms of equal opportunity or the enrichment of attitudes and perspectives (emphasis on the plural) from a greater number of women on the bench, the author chose the more group-oriented argument of gender bias and sensitivity (Kretser).
That same article, however, also acknowledged the symbolic value of a diversity of appointments. In the broader context of American history, there is nothing new about this. Judicial appointments have always reflected the needs and wishes of political representation. For much of the nation's early history regional and party representation figured prominently in the judicial selection process. Earlier in this century, in the aftermath of the great waves of immigration, religious and ethnic affiliations became important considerations. At a time when religious differences assumed a larger role in defining the cleavages of society (Will Herberg's "Triple Melting Pot"), there was what was popularly described as a "Jewish seat" on the U.S. Supreme Court. The notable absence of comment about the fact that Ruth Bader Ginsberg was the first Jewish appointee to sit on the Court in a quarter-century suggests the degree to which religious affiliation has faded as a criterion for judicial appointment. Though it remains a vital issue in the arena of presidential politics, in time, perhaps, the symbolic importance of other pluralistic points of reference will diminish as well.
Evidence of the number and distribution of minority judges suggests that it is following the normal course of judicial politics and procedures. African-Americans now occupy a significant number of state benches, lower proportionally than their percentage in the overall population, but higher than the proportion of African-American attorneys (see Graham). The degree of representation seems to have little to do with procedures of selection (by appointment or various forms of election) and depends much more on the size of the pool of black attorneys in a given state or jurisdiction. Overall demographics figure at least indirectly in the numbers-the most pluralistic states such as New York, Pennsylvania, Illinois, and California show large numbers and proportions. But it is worth noting that one of the least pluralistic states in the union-Utah-has a small but disproportionately high representation of minority judges (ibid.).
As the nation's judicial system seeks to adapt itself to the many changes taking place in American society, it should be kept in mind that the law-as a profession and as a culture-has never been particularly well suited to anticipating the needs for reform. It is by its nature a conservative culture, as it was in the days of Lord Coke, more attuned to measuring present circumstance by past example rather than by future likelihood.
On the other hand, the American judicial system is hardly monolithic. Indeed, since its beginnings it has always been in many respects a pluralist institution, diversified by this nation's system of federalism and extent of territory. Recent social science research has demonstrated that the topography of the nation's legal landscape does not represent a level plane. It suggests instead a rough terrain, whose contours reflect the varieties of local circumstance (Eisenstein, 1988). The research of Eisenstein and others has examined the dynamics of the law within the context of legal communities, normally defined by counties, which differ markedly across the country, shaped by their respective sizes and local circumstances. The relationships between judges, prosecutors, and defense attorneys, the patterns of plea bargaining and sentencing, the role of the media, and the relationship of the legal community itself to the larger community of which it is a part vary from place to place. The law in Chicago is very much different from than in Minneapolis or Detroit, Erie County, NY law different from that of the rural counties of southern Illinois. One of the findings of the Eisenstein study revealed that in many respects those legal systems situated in multicultural communities have developed over time in ways to accommodate the needs of the people they represent.
The George Washington study of the future of the state judiciary (cited above) was an extraordinary example to elicit from the legal culture predictions and recommendations for the future. Many interesting suggestions for reform emerged from the study, some--the respondents estimate--likely to command widespread support, others (primarily those with financial implications) to which the public was likely to be less receptive. Among the ideas suggested were legal services insurance for the middle class, additional funding of defense services for the indigent, continued development of alternative dispute resolution resources (ADRs) to take much of the litigation burden off the judiciary, electronic filing to help speed the process of litigation, non-unanimous juries, and expanded educational programs for both the judiciary itself and for the public at large (law-related education for middle-school students was specifically mentioned).
One of the more exotic suggestions was the creation of a "multicultural court" in each jurisdiction, freely accessible to minorities, with staffing and language capabilities fully reflecting the composition and needs of the community. It is a novel idea, perhaps impractical and perhaps ill-advised to the extent that such a court accentuates difference and separation. But it is in keeping with that tradition of legal reform that has sought to accommodate the law to the needs of the country's changing population. The legal realism school was born a century ago out of an awareness of the inadequacy of existing legal institutions and procedures to meet the needs of America's urban, largely immigrant populations. Reform included the creation of specialized courts, designed to address the social and economic needs of immigrants. The value of these institutions to the civic education of immigrants was also noted. Courts were often the first government institutions with which the new arrivals had any significant contact. Their role was also educational, introducing immigrants to America's civic culture. A Philadelphia attorney admiring the operation of one of New York City's newly constituted municipal courts observed that "a due regard has been had for the psychological value of a proper setting for such courts, in giving the magistrates dignified and sanitary courtrooms or buildings. In this way the value of these magistrates' courts as an Americanizing influence over the foreign elements-of many races and nationalities-in the New York City population, is fairly well secured" (quoted in Harrington, 31).
A similar reform campaign has been taking place since the late 1970s in the development of the aforementioned alternative dispute resolution programs (ADRs). The creation of these informal, mediating institutions at the local level-many of them described as "neighborhood justice centers"-has been aimed both at reducing the case loads of existing courts and addressing the problems of communities, especially ethnic minority communities. The ADRs are targeted on problems that call for mediation and compromise rather than adversarial confrontation. Much of their work has been directed at mediating conflicts between ethnic and racial groups. These initiatives have received support and guidance from the government (Department of Justice) and from major private foundations (especially the Ford Foundation). The idea has been endorsed by representatives across the political spectrum, from the late Chief Justice Burger to consumer rights advocate Ralph Nader.
I do not want to end this presentation on a sour note, but I believe it would be appropriate to add some words about the media, whose involvement in many of the issues discussed has already been noted. Daniel Yankelovich, one of the most respected of authorities on the science of public opinion polling, believes that the media do a good job of raising the public consciousness about important issues, but a poor job of engaging the public in the serious consideration of issues, value conflicts, and alternative courses of action that lead to what he called "public judgment" as opposed to "mass opinion" (Yankelovich, 39). In other words, the media don't do a very good job of educating for citizenship. Yankelovich is one of many students of the subject who believe that knowledge of one's political and judicial institutions, while important, is less so than the ability to apply in a reflective manner ones attitudes and values to difficult issues.
Certainly, one of the most depressing aspects of the Simpson trials was the failure of media coverage to offer much in the way of genuine education or dialogue across the racial and class divides exposed by the trials. For all the thousands of hours of trial coverage and the endless parade of experts discussing the ins and outs of legal strategy, there was scarce attention to the legal and constitutional principles involved, scarce effort to probe the deeper meanings of the racial differences revealed by the polls. Coverage of trials and adversarial law generally have developed into profit centers for today's largely commercial media: testimony to our continuing fascination with matters legal and constitutional that Tocqueville observed a century and a half ago. I doubt, however, if America's new "blood sport" represents the ideals of citizenship he had in mind.
Adamek, Raymond J. (1994). "Public Opinion and Roe v. Wade: Measurement Difficulties," Public Opinion Quarterly, 58, 3, 409-18.
Alozie, Nicholas O. (1988). "Black Representation on State Judiciaries," Social Science Quarterly, 69, 4, 979-86.
Atherton, Herbert M. (1994). "Zur Identitat der Amerikaner im Zeitalter der Ethnizitat [American Identity in the Age of Ethnicity]," Grundwerte der Demokratie im internationalen Vergleich, 328, 57-69.
Benavot, Aaron et al. (1996). "Knowledge for the Masses: World Models and National Curricula," in Comparing Nations and Culture: Readings in a Cross-Disciplinary Perspective. Eds. Alex Inkeles and Masamichi Sasaki. Englewood Cliffs, NJ: Prentice Hall, 305-23.
Bickel, Alexander M. (1978). The Supreme Court and the Idea of Progress. New Haven: Yale University Press.
Caplan, Lincoln (1995). "Sport TV: The Failure of Legal Journalism," The New Republic, 213, 17, 18 & 20.
Clay, D.A. (1993). "Race and Perception in the Courtroom: Nonverbal Behaviors and Attribution in the Criminal Justice System," Tulane Law Review, 67, 6, 2335-2355.
Corbett, Michael (1991). American Public Opinion: Trends, Processes, and Patterns. New York: Longman.
Coyle, Marcia (1990). "How Americans View High Court," The National Law Journal, 12, 25, 36-7.
Dahl, Robert (1982). Dilemmas of Pluralist Democracy: Autonomy vs. Control. New Haven: Yale University Press.
Dahl, Robert (1971). Polyarchy: Participation and Opposition. New Haven: Yale University Press.
Danigelis, Nicholas L. and Stephen J. Cutler (1991). "Cohort Trends in Attitudes About Law and Order: Who's Leading the Conservative Wave?" Public Opinion Quarterly, 55, 1, 24-49.
Davis, Richard (1994). Decisions and Images: The Supreme Court and the Press. Englewood Cliffs, NJ: Prentice Hall.
Dogan, Mattei, ed. (1988). Comparing Pluralist Democracies: Strains on Legitimacy. Boulder, CO: Westview Press.
Eisenstein, James (1973). Politics and the Legal Process. New York: Harper and Row.
Eisenstein, James, et al. (1988). The Contours of Justice: Communities and Their Courts. Boston: Little, Brown and Company.
Erskine, Hazel (1974). "The Polls: Fear of Violence and Crime," Public Opinion Quarterly, 38, 1, 131-45.
Franck, Thomas M. (1992). Political Questions/Judicial Answers: Does the Rule of Law Apply to Foreign Affairs? Princeton, NJ: Princeton University Press.
Gallup, George H. (1972). The Gallup Poll: Public Opinion 1935-1971. 3 vols. New York: Random House.
Golay, Michael (1997). Where America Stands 1997 on Today's Most Critical Issues. New York: John Wiley & Sons, Inc.
Goldman, Sheldon (1978). "A Profile of Carter's Judicial Nominees," Judicature, 62, 5, 246-254.
Goldman, Sheldon (1983). "Reagan's Judicial Appointments at Mid-term: Shaping the Bench in His Own Image," Judicature, 66, 8, 335-47.
Graham. Barbara Luck (1990). "Judicial Recruitment and Racial Diversity on State Courts: An Overview," Judicature, 74, 1, 29-34.
Greene, Dwight L. (1993). "Justice Scalia and Tonto, Judicial Pluralistic Ignorance, and the Myth of Colorless Individualism in Bostick v. Florida," Tulane Law Review, 67, 6, 1979-2062.
Guinier, Loni. (1995). "Beyond Winner Take All: Democracy's Conversation," The Nation, 260, 3, 85-8.
Harrington, Christine B. (1985). Shadow Justice: The Ideology and Institutionalization of Alternatives to Courts. Westport, CT: Greenwood Press.
Hastings, Elizabeth Hann and Philip K. Hastings (1996). Index to International Public Opinion, 1995-96. Westport, CT: Greenwood Press.
Holmes, Malcolm D. et al. (1993). "Judges' Ethnicity and Minority Sentencing: Evidence Concerning Hispanics," Social Science Quarterly, 74, 3, 496-506.
Horowitz, David L. (1977). The Courts and Social Policy. Washington, DC: The Brookings Institution.
Kennedy, Randall (1995). "After the Cheers: the Justice System and Black America," The New Republic, 213, 17, 14-18 (10/23/95).
Kretser, Rachel (1992). "Women and Minorities on the Judiciary," New York State Bar Journal, Dec. 1992, 8-10.
Lasley, James R. (1994). "Ethnicity, Gender, and Police Community Attitudes," Social Science Quarterly, 75, 1, 85-97.
Lieberman, Jethro K. (1984). The Role of Courts in American Society: The Final Report of the Council on the Role of Courts. St. Paul, MN: West Publishing Company.
Lipset, Seymour Martin (1994). "The Social Requisites of Democracy Revisited," American Sociological Review, 59, 1, 1-22.
Marcus, Rebecca (1994). "Racism in Our Courts: the Underfunding of Public Defenders and Its Disproportionate Impact upon Racial Minorities," Hastings Constitutional Law Quarterly, 22, 1, 219-267.
Marshall, Thomas R. (1991). "Public Opinion and the Rehnquist Court," Judicature, 74, 6, 322-329.
McCloskey, Herbert (1964). "Consensus and Ideology in American Politics," American Political Science Review, 58, 2, 361-82.
Murphy, Walter F. and Joseph Tanenhaus (1990). "Publicity, Public Opinion, and the Court," Northwestern University Law Review, 84, 3&4, 985-1023.
Narduli, Peter F., ed. (1979). The Study of Criminal Courts: Political Perspectives. Cambridge, MA: Ballinger Publishing Company.
Nunn, Kenneth B. (1995). "When Juries Meet the Press: Rethinking the Jury's Representation Function in Highly Publicized Cases," Hastings Constitutional Law Quarterly, 22, 2, 405-439.
Page, Benjamin I. and Robert Y. Shapiro (1982). "Changes in Americans' Policy References, 1935-1979," Public Opinion Quarterly, 46, 1, 24-53.
Page, Benjamin I., Robert Shapiro, and Glenn R. Dempsey (1987). "What Moves Public Opinion," American Political Science Quarterly, 81, 1, 23-43.
Page, Benjamin I. (1990). "Comment: The Rejection of Bork Preserved the Court's Limited Popular Constituencies," Northwestern University Law Review, 84, 3&4, 1024-1030.
Rosin, Hanna (1995). "Race Matters," The New Republic, 213, 17, 21-22.
Sampson, Kathleen, et al. (1990). "Different Voices, Different Choices? The Impact of More Women Lawyers and Judges on the Justice System," Judicature, 74, 3, 138-146.
Schwartz, Bernard (1974). The Law in America: A History. New York: McGraw-Hill.
Seymour, Whitney North, Jr. (1973). Why Justice Fails. New York: William Morrow & Co., Inc.
Sheldon, Charles H. and Nicholas P. Lovrich, Jr. (1983). "Knowledge and Judicial Voting: the Oregon and Washington Experience," Judicature, 67, 5, 234-45.
Sheley, Joseph F. (1993). "Structural Influences on the Problem of Race, Crime, and Criminal Justice Discrimination," Tulane Law Review, 67, 6, 2273-2292.
Smolowe, Jill (1995). "One Drug, Two Sentences," Time, 145, 25, 44-45.
Sowell, Thomas (1995). "Mindless Tribalism," Forbes, 156, 11, 82.
Taylor, Charles Louis and David A. Jodice (1983). World Handbook of Political and Social Indicators. 2 vols. New Haven, CT: Yale University Press.
Taylor, Charles (1992). Multiculturalism and 'The Politics of Recognition.' Princeton, NJ: Princeton University Press.
Tobias, Carl (1995). "Increasing Balance on the Federal Bench," Houston Law Review, 32, 1, 137-157.
Tocqueville, Alexis de (1963). Democracy in America. 2 vols. New York: Alfred A. Knopf.
Trilling, Diana (1995). "Notes on the Trial of the Century," The New Republic, 213, 18, 18 & 20-22.
"Unreasonable Doubt," The New Republic, 213, 17, 7-8.
U.S. Bureau of the Census (1996). Statistical Abstract of the United States: 1996. Washington, DC.
Walzer, Michael (1980). "Pluralism: a Political Perspective," in The Harvard Encyclopedia of American Ethnic Groups, ed. Stephen Thernstrom. Cambridge, MA: Harvard University Press, 781-87.
Warr, Mark (1995). "Trends: Public Opinion on Crime and Punishment," Public Opinion Quarterly, 59, 2, 296-310.
Wasby, Stephen L. (1995). Race Relations Litigation in the Age of Complexity. Charlottesville, VA: University Press of Virginia.
Williams, Patricia J. (1995). "America and the Simpson Trial," The Nation, 260, 10. 337-40.
Wills, Gary (1981). Explaining America: The Federalist. Garden City, NY: Doubleday & Company, Inc.
Yankelovich, Daniel (1991). Coming to Public Judgment: Making Democracy Work in a Complex World. Syracuse, NY: Syracuse University Press.
Yankelovich, Skelly, and White, Inc. (1981). Survey of Judges on the Role of Courts in American Society, 1979. Inter-University Consortium for Political and Social Research.
Zweig, Franklin M. et al. (1990). "Securing the Future for America's State Courts," Judicature, 73, 6, 296-306.
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