Op Ed in The Daily Record by Morgan Foster

Published August 28, 2020
By: Morgan Foster

Most of the women I know — black and white, northern and southern, democrat and republican — embraced the “Challenge Accepted” social media campaign. Many participants saw this as a simple statement of women-supporting-women (and an opportunity to post a flattering black-and-white photo), but may not have known that campaign started as a way to call out the injustices in the Turkish judicial system for failing to hold perpetrators of domestic violence accountable. The widespread success of this campaign demonstrates that even in these divisive times, it is uncontroversial to acknowledge that that problems exists there – halfway around the world – but I think it’s time to hold a mirror up to our own system – and to recognize how far we still have to go.

Amidst all of the glamorous photos, you probably missed the article this week about the Bucks County, PA Judge who publicly apologized after telling a domestic violence victim, on the record, in open court, in the United States of America: “Little blond honey, you’re too dumb to leave [your abuser].”

As an attorney and litigator, I wish I could say his comment surprised me – but it didn’t. Judges are, after all, human and our judicial system reflects the misogyny, sexism, racism and other biases that still afflict our society at large – biases that seem amplified in this divisive and politically-charged climate. When a judge brings these biases into the judicial process, the biases become “systemic” not just societal – and they affect our access to justice.

In more than 15 years of practicing law, I have seen desperate faces of litigants amidst a highly contested case ask me again and again to predict what “the Court” will do and how “the system will deal with their particular problem. I know that in asking this question, they believe there is an answer. A fixed answer. A predictable answer. A right answer.

But as any experienced litigator can tell you, the outcome of litigation is often impossible to predict. There are many reasons for this uncertainty, but the one we talk about least is that “the Court” is made of human beings – all of whom bring the biases and experiences of their own life with them to the bench. I could present the same set of facts in three different courtrooms, to three different judges, and get three different outcomes. Anyone who knows the system from the inside knows this is true.

In many cases, this uncertainty is not a bad thing. Our judicial system is comprised of humans by design. The flexibility and nuance of a system organized this way has many benefits – like imbuing our judicial system with human empathy, pragmatism and creativity – rather than strictly dogmatic application of black-and-white rules. But it is precisely the “humanity” of our judicial system that makes it vulnerable.

There is a rich history of prejudices and wrong decisions in our judicial system, such as the Loving v. Virginia case from 1967 where the supreme court struck down laws banning interracial marriage after lower courts upheld them. Most landmark supreme court decisions (including Loving, Brown v. Board of Education, and others that have ended up in the canons of legal history) were overturning decisions by the lower courts (often upholding laws codifying bigotry). The system is designed to make corrections for itself when judges get it wrong. It is the beauty of our legal system. It is living and breathing. It evolves.

We think of our judicial system as among the most rigorous and incorruptible of our institutions – and I think that remains true – but it is not entirely impervious to the influence of changing societal norms and shifts in what might be “acceptable” prejudices. While the judicial system evolves in a positive way with social progress, it can also devolve if there is a resurgence of bigotry in our nation. We must recognize that our own brand of justice is fragile. It is human. Our own systems are just as vulnerable to corruption as those halfway around the world.

If we accept a society where expressions of overt bias by our leaders is acceptable, one where we become numb to corruption, or brush it off as an unsavory but necessary part of politics – then even our American institutions – the ones we have held up as the “envy of the world” for generations – will begin to erode just like those we see in those far-off places like Turkey. As we witness the politicization of historically a-political institutions like the Centers for Disease Control, the Food and Drug Administration and the Post Office, let us remember that our justice system is not immune from such influence. We must not take our own brand of justice for granted. Like any living, breathing thing it can be injured, or even die.

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