Institutional diversity has long been a feature of adjudication within and across national borders. In contrast, the authority to seek and to render judgment has largely been hegemonic. What has changed are the kinds of injuries that courts recognize and the demographics of the people taking part as claimants, witnesses, staff, lawyers, and adjudicators.
For this symposium, I sketch more than a hundred years of activism during which lawyers and judges in the United States created a host of organizations, as they debated the shape and content of legal norms. Interacting with social movements, these efforts resulted in innovative rules for courts, a proliferation of sites of adjudication and dispute resolution, new modes of lawyering, an array of cognizable rights, subsidies for some users, and a change in the demographics of the people seeking help from and working in courts. An array of statutory and constitutional rights meant that women and men of all colors and classes gained authority as individuals and in the aggregate to lay claim to law’s protection as employees, students, consumers, tenants, recipients of benefits, prisoners, or victims of violence and of tortious misbehavior.
A vivid example of these changing norms is the recent phenomenon of women-as-judges (a few of color), which has interrupted (but not ended) descriptive discrimination of some kinds. These women embody the proposition that people of all genders and races can hold rights and exercise authority. Women-as-judges also marks that courts both lend their authority to and seek to derive authority from expressed commitments to some forms of egalitarianism.
What has been the impact? Despite concerns about essentialism and distinctions between correlation and causation, women’s entrance to the judiciary has spawned a literature preoccupied with mapping the gender of judges and with studying whether women judges function differently than their male counterparts in terms of case outcomes or processes. Less studied has been the impact on judiciaries acting in their corporate capacities. Identity-based organizations persuaded court systems to launch studies into how gender, race, and ethnic biases affected their functioning and to revise rules in practices in the wake of their findings.
What about class? The entry of tens of thousands of persons with limited wealth raised challenges for courts in ways that the assimilation of persons of different races and genders did not. Because courts provide redistributive opportunities by bestowing status on litigants, individuals gain the power to compel opponents to account in public for behaviors that would otherwise go unknown and unchecked. As people with limited resources became commonplace users of courts, the asymmetries among disputants created pressures for courts to validate their own legitimacy by providing subsidies and permitting aggregate actions to mitigate some of those inequalities. Moreover, many jurisdictions have also turned their courts into revenue centers, imposing daunting costs on people, including those with limited ability to pay.
Courts have thus become another site in which economic inequalities are on display. But even as judiciaries are grabbling with the implications of “equal justice” in a profoundly unequal world, social and legal movements are succeeding in limiting both individual and collective access to courts and in privatizing the processes of judgment. The recent and partial diversification of the bench could mark an insistence on new meanings of egalitarianism that take on the role that resources play in courts, or the numbers of women and men of all colors on the bench will serve to mask that such aspirations are in decline.