A Call to Action to Courts: Responding to the Coronavirus Pandemic and Racism

How should courts and partner justice institutions respond to the existential crises facing our society today? Peter F. Drucker, the dean of this country’s management philosophers, would give us this advice: The important thing is to identify  the future that has already happened.

Every hundred years or so, we experience a sharp transformation. We come to an inflection point and must cross a divide, writes Peter Drucker in The New Realities, originally published in 1989.  “Within a few short decades, society rearranges itself – its worldview, its basic values, its social and political structure, its arts, its key institutions. Fifty years later, there is a new world. And the people born then cannot even imagine the world in which their grandparents lived and into which their own parents were born.”

We are today at such a transformation: at the  confluence of existential crises that reinforce each other  – the coronavirus pandemic, economic collapse, structural racism, social unrest, international and domestic terrorism, and divisive and violent political turmoil upending the peaceful transition of power. This transformation is making its  full impact real to us today. The realities underlie the restructuring of our courts and other public institutions, and our private businesses, the  rethinking of our basic values, and what is likely a permanent reorganization of everything we do and how we do it.

Fulfil Primary Mission and Lead Beyond the Courthouse Doors

It is notoriously hard for us to stand back and deal with our own times.  The new realities we face in this transformation are fundamentally  different from the issues on which we still fix our attention. Drucker’s urgent message to court administration scholars and practitioners  is clear. The next time we hear our colleagues pounding the table for something that is undoubtedly yesterday’s challenge, tell them they need to wake up the new realities of this transformation.  Face the future that has already happened.

Drucker believed that public and private organizations should be responsible and  accountable for  their own performance guided by their unique and limited mission.  But that is not enough. Leaders of all institutions should also take social responsibility and lead beyond the borders of their institutions. Accordingly, courts should concentrate their efforts on dispute resolution and related judicial services. But they should also lead beyond their borders in the community as a whole, in society, and take care of the common good. To fight for racial justice, they should identify rules and change practices and customs that may have been once rooted in law with residual negative effects on Black Americans that reverberate throughout society.

A Whole of Society Approach (WOSA)

In a recent article, Racial Inequality and Systemic Injustice, the Coronavirus Pandemic, and the Courts, my colleagues and I urged judicial leaders, both judges and court administrators, not only to continue to provide and to improve critical justice services, but also to extend their gaze to a much broader perspective and  participate in a whole-of-society approach (WOSA)  to respond to  racial injustice and the pandemic.

The WOSA is rooted in common-sense, most notably that the complex threats to our national and transnational safety and security defy solutions by the actions of just a few entities such as the military and intelligence communities. Rather, a WOSA approach stresses unity of action and a wide range of viewpoints and perspectives on threats and risks in an increasingly complex and uncertain world. Today’s threats and risks demand coordinated and rapid responses by many diverse actors in and out of government including ethicists, moral philosophers, scientists, economists, futurists, and, yes, judicial officers and court administrators.

The argument for courts’ participation in WOSA is a simple one. The threats we face include “known unknowns,” threats we know exist, but we do not have all the information about them. We might know, for example, that bioterrorists exist, but where and precisely how many may be a known unknown. More frightening and difficult are the “unknown unknowns,” threats we are neither aware or understand, events and situations impossible to anticipate. One or more actors  in WOSA may recognize something not seen by others that staves off a catastrophe, thwarts a threat, or mitigates damage. It is far better for such agents to be on hand, ready and prepared, and not be needed, rather than to be needed and be helpless bystanders to a catastrophic occurrence.

As our article makes clear, though most judicial leaders have remained silent, leading jurists in the highest state courts in the U.S. have stepped off the sidelines, “going  against the grain of codes and the general practice of judges not commenting on issues outside their published opinions,” and have spoken out about racial justice and police violence, making it clear  that the judiciary has a role to play in rooting out racial biases.

Looking Outward and Looking Inward

Courts’ participation in WOSA is  practice whereby they view themselves as  social institutions, orienting themselves, their values, goals, processes, and operations toward serving society.  But orienting themselves outward toward the greater society beyond the courthouse doors is not sufficient. They must also look inward,  rigorously examining, and fundamentally changing  their processes and operations to remove barriers to fairness to address unconscious bias.  

For example, court administrators  should ask themselves whether individuals’ first encounters with the court involve discriminatory practices. Are those encounters consistent with Standard 1.4 of the Trial Court Performance Standards that requires judges and trial court personnel to be courteous and responsive to the public, and accord respect to all with whom they come into contact? “No court employee should by words or conduct demonstrate bias  or prejudice based on race, religion, ethnicity, gender, sexual orientation, color, age handicap, or political affiliation.”

When one enters most courthouses in the United States,  one must go through a metal detector and put items we are carrying through an  X-ray machine operated by court security personnel. We are required to empty our pockets and place the contents in a container for further inspection. Several years ago, I led a delegation of judges and senior court administrators of the Kenyan Judiciary focused on trial court performance on a tour of state courts. On a visit to the District Columbia Courts, as they stood in a long line joining others waiting in the rain to enter the busy Moultrie Courthouse, they remarked with approval at how everyone waiting to go through the security check  was accorded the same courtesy and respect by court staff. Several expressed surprise and approval that the delegation was not given VIP treatment and ushered past the security check ahead of everyone in line.

In future posts here we will  explore other  examples of how courts can address racial disparities and biases in court processes and  operations – such as anomalies in judicial calendaring and pretrial detention --  that lie within the power of courts and their  justice partners  to implement administratively and unilaterally.  Like the example above of court users’ first in-person  encounters with a court,  the attention paid to such internal court operations does not focus on race per se, thereby avoiding identity politics and the language of political disagreement – e.g., differences between structural, institutional, and systemic  racism --  that can divert energy and attention from more fundamental issues focused on improving everyone’s lives.

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