Chaos in the Courts, Courtesy of Coronavirus
“The courts shall always be open,” proclaim the constitutions of numerous U.S. states.
And while this exact sentence is not in the U.S. Constitution, the spirit is present.
Americans cherish the idea that they are entitled to a day in court, if need be. This is a land of courts and courthouses, open to the people. Whether state or federal, an American courthouse is where you settle cases and controversies.
Unless there’s a pandemic and the courthouses close.
You may be preoccupied by the current national self-isolation. But in the town square, if not big city downtowns everywhere, many courts are closed up tighter than a drum. Day in court? Not now, not lately and maybe not for a while to come.
On the surface, it may not sound like a big deal… until you realize the deeper implications for our country.
In fact, the very name of this publication offers a clue for where things could be heading.
So here’s what’s happening, and where it could lead…
Wherever you live, you are subject to an immense number of all manner of laws — local, state and federal. So many laws, in fact, that you likely don’t even know what most of them are.
Doubtless you know the big ones. Don’t murder people. Don’t rob banks. Drive the speed limit. Pay your taxes. These, and many more, are part of the fabric of American life.
But you can’t know all of the laws by heart.. Consider that at the federal level, for example, the U.S. Code — the body of laws passed by Congress — fills a massive set of about 25 library shelves, more or less…
One shelf of U.S. Code
The U.S. Tax Code alone has over 4 million words… every one of them passed by Congress.
And these metrics about shelf-space and word-count are just for laws. They don’t include regulations — many with the effect of law — from the alphabet-soup agencies that “implement” Congress’ laws. That’s even more pages of “law” found within the Code of Federal Regulations.
Looking at it now, it’s hard to believe that we’re less than 100 years removed from when the entire body of federal law could fit inside one volume, about the size of a dictionary. Like this…
U.S. Code in 1925
Aside from federal statutes and regulations, your state laws are voluminous as well, wherever you live. (Seriously; it doesn’t matter where you live. Every state has shelves full of books filled with laws.) And then there are county and local ordinances and the like.
Point is, you live under many sets of law. Too many, some might say…
Yet for all the laws on the books out there, it’s not an overstatement to say that the U.S. no longer has a functioning legal system.
Let’s illustrate the issue. Have you walked down to your local magistrate’s office? It’s probably closed. (Mine is.)
How about the county courthouse? Closed. (Ditto.)
Federal courts? Closed.
Although in fairness, I should note that the website of my local federal district court states, “Only essential staff are in our courthouses during business hours with the majority of staff teleworking.”
In other words, “Leave us alone.”
Even the U.S. Supreme Court has closed its bronze doors. The court last met on March 9. Then the justices suspended all public matters, for obvious reasons concerning the virus.
In a whiff of good news, the Supreme Court just announced that it will hear arguments via teleconference, beginning in mid-May. That is, Supreme Court justices and the lawyers before them will “argue” cases remotely.
Teleconferencing is a huge break from long tradition, to be sure. Justices and lawyers have faced-off towards each other since 1789. Not anymore…
In another break with the past, the court will provide a live audio feed to news organizations. This will be the first time ever that outsiders will hear arguments in real time. Problem is, it introduces a new variable to arguments, such as grandstanding. That is, lawyers and justices might not so much speak to each other, but to a wider public audience who might be listening in. More than likely, live feed of arguments will change some of the dynamics.
Then again, some might think that it’s “progress” to open the Supreme Court to real-time public view. Perhaps…
But due to the virus issue, this clearly is not a well thought out situation. It comes across more as the high-visibility Supreme Court scrambling to accommodate some semblance of basic due process, function and ordered business while the world has — figuratively — caught fire.
Meanwhile, what about lower courts? They aren’t in the public eye as much asthe U.S. Supreme Court, but they are where most of the nation’s legal business happens…
It’s a dire situation out there, according to Associated Press. The national shutdown “has crippled the U.S. legal system, creating constitutional dilemmas as the accused miss their days in court. The public health crisis could build a legal backlog that overwhelms courts across the country, leaving some defendants behind bars longer, and forcing prosecutors to decide which cases to pursue and which to let slide.”
Judges are postponing hearings and trials, in civil and even in criminal matters. Of course, it’s unsafe to bring people together in courtrooms, just as in any other place like a movie theater or concert hall.
Still, what about the need to keep the nation’s legal wheels turning?
And for criminal matters, what about the Sixth Amendment? “Speedy trial” and all that? Sorry… it’s a virus issue. The flipside is that victims don’t see their crime resolved either.
The problem pertains to juries as well. Under lockdown conditions, it’s not possible to assemble people for jury duty, let alone to pick a jury or hold a jury trial. Sixth and Seventh Amendments? Jury trial? Too bad.
In some places, judges are conducting proceedings by telephone or video. That’s better than nothing. But part of the reason for in-person proceedings is so that judges (and juries, which are not happening) can assess the demeanor of witnesses. There are things people notice up close that get lost in the telephone or video conference.
Meanwhile, there’s another very basic problem across the nation… In many courts, technology for conferencing with more than a few people just isn’t there. Quite a bit of courthouse tech may be a decade or more behind what you might have in your home office.
And there’s more…
At the level of criminal law, police and prosecutors across the country are all but abandoning prosecutions for low-level offenses. Even serious matters — assault or high-value theft — might get a pass due to virus issues.
Meanwhile, down at the jailhouse or prison, many inmates are walking out under early release or parole. The alternative is to keep people cooped up and under threat of virus infection.
Those who remain incarcerated may not be able to meet with their lawyers due to restrictions on visiting. It’s even possible that lawyers just don’t want to walk into a jail or prison and potentially become exposed to the virus. It makes a mess of witness or trial preparation.
The whole situation has become haphazard. Looking ahead, many parties will doubtless find some manner of “appealable error” out of the current legal logjam. We’ll see massive numbers of new cases and appeals clog the courts when the lockdown is lifted.
There’s plenty more to discuss in all of this. But you get the picture…
And by now you’re probably wondering why I’m bringing this to your attention.
The fact is, idea of access to courts — or not — is right up the alley for Whiskey & Gunpowder. Our very name comes from a combination of the American Whiskey Rebellion of 1791–94 and Guy Fawkes’ “Gunpowder Plot” in Britain in 1605.
Both events show that when access to justice is barred, or events play out painfully slow, people tend to lose respect for the governing authorities. They may even lose faith in the very concept of what underpins that authority. It’s a key recipe in the cookbook of national disaster.
Most people live in the day-to-day world. Most people don’t ponder the philosophical underpinnings of the U.S. existence. But humor me here…
Take a look at the fundamental structure of U.S. government and governance. The country is a federal republic, made up of constituent states. At root, the country is made up of layers of jurisdictions, from counties to states and then the federal level.
In essence, we all live within a system of laws; or more correctly, it’s a system of systems of laws. And those legal systems control the division of political power. Local does local law. State does state law. Federal does federal law.
And right now, the system of systems are not working. Doubtless, America, can muddle along for a while. But it had better not be too long of a while.
Obviously, the country needs to take appropriate measures about the virus. But the country also needs to get back to work. Judges and lawyers, no less than anyone else. —
Indeed, “the courts shall always be open” isn’t just an instruction — it’s a vaccine against chaos.
On that note, I rest my case.
That’s all for now… Thank you for subscribing and reading.
Managing Editor, Whiskey & Gunpowder
P.S. – Feel free to forward Whiskey & Gunpowder to friends, family and colleagues. If you received this article from someone and would like to subscribe, click here. Thank you.