Access to the courts: An essay for the Georgetown University Law Center Conference on the independence of the courts

In this Essay, we argue that the gap between America's promise of equal justice and the reality of justice on the ground is substantial, and growing. Meaningful access to the courts-consisting of representation by counsel, the ability to physically enter court and understand and participate in the proceedings, and the opportunity to have claims heard-is increasingly out of reach for many Americans. First, there are not enough lawyers available to represent low-income people in civil legal matters, resulting in four-fifths of the civil legal needs of low-income individuals going unmet. Second, in the criminal justice system, where the right to counsel for the indigent is constitutionally guaranteed, attorneys are commonly underpaid, under-supervised, under-resourced and, ultimately, unable to provide effective representation. Third, for people with physical or psychiatric disabilities, court buildings and court procedures pose obstacles that may be insurmountable. Fourth, for people with limited English proficiency, the lack of translation and interpreting services in many of the nation's courts also poses barriers that are often overwhelming. Fifth, the role of the courts is increasingly circumscribed by laws and by court decisions that eliminate whole categories of claims from the courts' jurisdiction. Sixth, increased and often mandatory reliance on alternative dispute resolution has placed judicial review out of reach for an increasing number of people. These six factors, we argue, daily threaten the ability of our courts to perform their essential functions: providing predictable and fair dispute resolution, acting as a check on the legislative and executive branches, protecting the most vulnerable from the excesses of majoritarianism, and reaffirming the citizenry's faith in the legitimacy of the courts and of government in general. Finally, we conclude by offering a set of policy solutions aimed at stabilizing our courts, promoting their independence, and fulfilling the promise of equal justice.