RACIAL INEQUALITY AND SYSTEMIC INJUSTICE TACKLED BY U.S. COURTS

In a yet-to-be-published article, my colleagues Sahira Abdool, Tricia Cameron-Anglin, and Jeffrey Newman and I wrote that  the twin crises of systemic racial injustice and the Covid-19 pandemic have caused unprecedented social and economic upheaval – including economic contraction and violent street protests -- that pose existential threats to society. The article is an urgent call to action for judicial leaders, both judges and court administrators, not only to continue to provide critical justice services but also to become active participants  in a whole-of-society approach (WOSA) to combat racial injustice and the pandemic.

For example, we urge court leaders to close  the gap between the law on the books and the law in practice by asking tough questions about differences between what we would like to see happen and what actually is happening in the justice system, such as the fact that  pretrial custody account for roughly one-third of all incarcerated individuals globally.  A “disproportionate number of these pretrial detainees belong to poor and marginalized groups that are politically, economically, and socially discriminated against,” we wrote.

As our article makes clear, though most judicial leaders have remained silent, leading jurists and 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 and systemic injustices.

More Judicial Leaders Today Willing to Combat Systemic Racial Injustice

That trend is continuing, I believe. For example, on September 1,  the National Center for State Courts (NCSC) announced that Edwin Bell, deputy court administrator for the Stone Mountain Judicial Circuit in Decatur, Georgia, will join NCSC next month as the director of Racial Equity, Fairness, and Inclusion. The position was created to support a resolution passed in July by the Conference of Chief Justices (CCJ) and the Conference of State Court Administrators (COSCA), aimed to address racial equality in the justice system.

In an interview published September 9^th  in the NCSC’s @the Center Newsletter, Mr. Bell recounted an example of a “possible starting place” for tackling systemic injustice that he has observed – judicial calendaring -- an example which  some may regard as a mundane part of everyday court operations.   Bell said that for years he has seen judges, who may have more than 50 cases on their morning calendar, separate litigants into two groups, those who have attorneys and those who do not. Cases of litigants with attorneys are heard first; lower income and self-represented litigants are left waiting, sometimes for hours. While this is not intended as a racial decision, Bell said “it can have a disproportionate impact on the economically disadvantaged, who are often minorities … There has to be a way ahead of time to separate these groups,” that does not leave one group missing work and suffering other potential personal and economic impact not experienced by the other group.

Are We Ready for Political Football?

The National Football League (NFL) started last night with the Kansas City Chiefs defeating the Houston Oilers, an event that had an outsized significance for me during Covid-19. In 2016, Colin Rand Kaepernick, then a quarterback for the San Francisco 49ers began kneeling,  rather than stand as is customary, during the playing of the national anthem at the start of NFL games in protest of police brutality and racial inequality in the United States. His protests received highly polarized reactions. While some praised him, others denounced his stand against racism, claiming that politics should not intrude into sports. Things have changed in four years.

In June of this year, amid the George Floyd protests, NFL Commissioner Roger Goodell put out a statement in which he apologized for not listening to the concerns of Kaepernick and other African American players. While the two situations are quite different, I can’t help but think – and hope – that the change in the public’s views of Kaepernick’s actions may be analogous to a widespread acknowledgment that time is now for courts and their justice partners to speak up and act out to combat structural racial injustice.

We need to speak out and not cede floor to others. Silence does not benefit the courts and society.

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