Read This Book

How three judges are bringing justice back to the courts

This is a big day for me – and, maybe, a notable one for at least some of the people who fear for the rule of law and their faith in judges to uphold it. Today, my book, Better Judgment, comes out. In it I argue that as easy as it would be to give up on the courts right now, that would be a mistake.

It would be a mistake because, still, judges can stand against abuses like last weekend’s attempt to deport children in the dead of night to Guatemala. More broadly, it would be a mistake because courts at their best can act as a kind of whistleblower in our democracy, sending an early signal that a serious problem needs repair. They can also bring us together with persuasive rulings that broaden support for shifts in what society views as good or appropriate or desirable. They can offer a direct and effective way for us to voice our concerns and have them addressed. And the courts are one of the few places where facts – tested, proven facts – can emerge to shed light on disasters so that lawmakers can sensibly gauge what happened and enact reforms.

Yet as I argue in my book, over the past six decades federal courts and, even more important, people’s access to them have been constrained or blocked – by Congress, by the Executive, and especially by the Supreme Court itself – to the point where they can no longer do what we count on them to do.

In too many cases, they cannot make police officers or other officials pay for the abuse that they inflict on their victims. And it’s not just police. A virtually impenetrable legal shield has protected the likes of prosecutors and judges from answering for even the most horrific misconduct. Courts cannot allow employees harassed or worse at work to reveal in public their bosses’ misconduct. Judges cannot force banks to come clean about frauds that force the economy to its knees. And in case after case, criminals cannot get just sentences, immigrants fair hearings, or Americans generally the day in court that they once imagined was their right.

So how did it happen? The current effort to kick shut the courthouse doors started about seventy years ago, initially fueled by racism. In 1956, a group of Southern senators aghast at what Brown v. Board of Education – the Supreme Court case that ruled racially segregated schools unconstitutional – would do to their home states’ way of life issued the Southern Manifesto, a declaration of war on the federal courts. In the following decades, the effort gained momentum from a politics of retribution, errant attempts at reform, and a fear that courts fully capable of delivering justice would be too costly and slow. Today, the federal bench is full of men and women inclined to view their role narrowly, to duck cases and defer to state lawmakers and governors and let pass rather than scrutinize and perhaps challenge the toughest issues of our day.

It is not the first time that the federal courts have suffered diminished stature. They have periodically risen and fallen in the eyes of Americans – liberals and conservatives and libertarians, Democrats and Republicans and Progressives – throughout our nation’s history. They and especially the Supreme Court have been on the side of some of the most regressive forces in society. But just as often they have given Americans hope and relief on everything from racial equality to economic progress to criminal justice

This history has long provoked intense debate among politicians and scholars and judges themselves over how powerful and accessible to the public the courts should be. In recent years, though, it seems a swath of America has about given up on the federal courts. On the right, the work of making it harder for people to seek redress and vindicate their rights still thrives, and to the extent conservative judges and justices are considered activist, it is a starkly negative activism, an effort to get the federal courts out of the business of, say, upholding erstwhile principles like the right to abortion or the notion that all Americans – even presidents – are not above the law. On the left, the talk is of imposing term limits on judges and justices and limiting their ability to hear certain types of cases and relying instead on elected officials to make law and interpret the Constitution.

The best argument for why we should not give up on the courts is revealed in the stories of the three remarkable judges I portray in my book. They are of different races and genders, from different backgrounds and parts of the country, and with different views of their roles on the bench, and they have strengthened our democracy in a host of extraordinary ways. One judge is Carlton Reeves, a Black man born in Mississippi during the height of the 1960s struggles over civil rights, who in first grade attended the state’s first desegregated school class and grew up to be a judge of extraordinary compassion, courage, and eloquence on the U.S. district court in Jackson, Mississippi Another is Jed Rakoff, a white, well-educated child of a prosperous Philadelphia suburb, who after nearly three decades as a U.S. district court judge in New York routinely challenges power and legal precedent as one of the nation’s leading advocates for judicial independence. The third is Martha Vazquez, a Mexican American and daughter of an undocumented immigrant, who grew up in a scruffy neighborhood of 1960s Southern California working alongside her parents in the gardens of the well-to-do and became a U.S. district court judge in Santa Fe, New Mexico.

Each of these judges came of age as people’s access to the courts and the power of judges were declining, and each was personally and profoundly affected by the experience. What’s more, on the bench, each has resisted growing and harmful constraints on a judge’s power to discover the truth and right wrongs – Rakoff by confronting those constraints directly through the force of logic, Vazquez by digging deep into the lives of the people who come before her, Reeves by making his case to the ultimate authority – the people. Their diversity demonstrates both the breadth of the opposition to limiting court access and power and the range of people who practice audacious and consequence-focused judging. Their story is very much the story of a compelling resistance to a war on the courts – a resistance more necessary now than ever.

Tomorrow, I will introduce you to the first of these judges.