This past summer, I worked as a judicial extern in the chambers of Judge Joseph Van Bokkelen, in the United States District Court for the Northern District of Indiana. One of the first complaints I was assigned to untangle was a pro se litigant’s suit against his employer.
The plaintiff’s frustration was evident. He clearly believed he has been on the receiving end of an intolerable wrong. But his legal savvy was nonexistent, and each amendment to his complaint served only to amplify his anger while doing little to identify an actionable legal claim.
Still, I sat in the office of the judicial clerk familiar with the case, both of us talking through every aspect of the claim to make sure we didn’t end up dismissing a legitimate complaint that only lacked the benefit of an experienced advocate to more clearly isolate and articulate it.
“If only people could see us in here, taking their complaints seriously,” he said to me at one point. “I think that they would be so much more satisfied that they received a fair hearing.”
‘An absolute crime’
I thought about that experience last Wednesday while listening as University of Wisconsin-Milwaukee political science professor Sara Benesh presented her work attempting to discern Americans’ perceptions about the lower federal courts. The discussion, which took place at Northwestern University Law School, was part of the ongoing Judicial Behavior Workshop jointly operated by the law schools at the University of Chicago and Northwestern.
My experience this past summer was at the U.S. district court level, which Benesh says that a lot of Americans are actually familiar with. Benesh is hoping to earn a grant to commission an extensive study of American attitudes and familiarity with circuit courts in the federal system. Similar existing studies usually focus on the Supreme Court exclusively. The preliminary study that Benesh cited in her discussion and her accompanying paper, which she collaborated on with Wellesley College’s Nancy Scherer and George State University’s Amy L. Steigerwalt, was based on a small sample size of suvey respondents, along with a student experiment.
An extensive study of American opinions on and familiarity with lower federal courts, Benesh said, demonstrates a gaping hole in the current policial science academic literature.
“We know absolutely nothing about how people feel about the circuit courts,” Benesh said. “That’s an absolute crime.”
Compared to other American political institutions, and large institutions in general, the Supreme Court has largely been insulated from public cynicism. Not that the Court is completely immune to public ire. In the study Beresh based her paper on, 23 percent of respondents agreed that, “if the U.S. Supreme Court started making a lot of decisions that most people disagree with, it might be better to do away with the Supreme Court altogether.”
But that pales in comparison to the outright anger generated toward the most visible members of the other two branches of the federal government. Even the most controversial Supreme Court decision in recent memory, the Bush v. Gore opinion that ended the 2000 presidential election, did little to generate widespread dissatisfaction with the Court since Americans on both sides of the political divide canceled each other out. By contrast, Benesh noted that every time a United States President makes a big decision, it eats away at his public approval rating. And one needs to look no further than the plight of Senate mainstays like Harry Reid this fall to get some understanding of the storm-the-Bastille mentality that can take over when voters become frustrated with Congress.
“With politics you see ugliness, you see log-rolling and money and lobbying and backroom deals,” Benesh said. “But to know the Supreme Court, which is more secretive, is to be in love with the symbolism.”
There are many reasons for the gap between the public’s support of and respect for the Supreme Court and its support of and respect for lower federal courts, particularly Courts of Appeals. Benesh believes that a lot of those reasons can be boiled down to sheer familiarity. While we are frequently informed of ominous-sounding studies that find that more Americans can name Disney’s seven dwarves than, say, three current Court justices, people are at least familiar with the instititution itself, even if they can’t cold recall members of the bench at any given time.
“The U.S. system,” one audience member remarked, contrasting it with less hierarchical systems in some European nations, “makes it easy to believe that the highest court has the wisest people.”
A question of legitimacy
Further data on the lower courts is needed, said Benesh, not just to satisfy curiosity but to answer a more overarching question.
“Why do people listen to these courts?” Benesh said. “It seems like they do. There’s not a widespread noncompliance issue. It’s important to understand where this legitimacy comes from.”
For people who have had direct exposure to the lower courts, it is not difficult to understand where the legitimacy flows from. The federal building I worked in this past summer, just a few minutes from the South Side in Hammond, Ind., was a modern-day fortress. The massive entrance lobby was stone gray and immaculate. The courtrooms themselves were cavernous and, on a smaller scale, steeped in the same kind of symbolism that helps make the Supreme Court such a hallowed American institution.
But most Americans are not filing lawsuits in federal court or attending federal sentencing hearings. So it is vital, said Benesh, to understand from where precisely the legitimacy of the courts derive, and to locate which leaks in the dam have to be patched to ensure that legitimacy going forward.
“The thing that was most troubling to me,” she said, “was I think the most important questions were questions about the length of tenure and selection, because that defines the independence of the institution. And those were the questions people knew the least.
“That bothers me. The fact that they can’t name the chief justice doesn’t bother me. But that they don’t understand one of the most important protections the Framers gave to the judiciary troubles me.”
The ultimate source of legitimacy, according to Benesh, was one with which I am intimately familiar - at least at the district court level.
"People don’t get mad if they win or lose," she said of the Court of Appeals, "as long as they feel like they got treated fairly."