I thank the Law and Political Economy Project for inviting me to participate in this blog symposium on capitalism and the courts. I begin by stating the obvious: that we live in a capitalist economic system and a political system that aspires to being democratic. There is clearly considerable tension between these systems. Most capitalists and many people who identify with them strongly support policies that favor capital and the wealthy. They tend to be less interested in policies that focus directly on strengthening the democratic political system. Among the policies these individuals tend to favor are low taxes on wealthy individuals and corporations (without regard to regressivity), minimal regulation of business and minimal spending on the poor. In contrast, individuals who focus primarily on strengthening the democratic political system tend to favor policies that seek to ameliorate the harshness of capitalism and promote greater economic and political equality. Such policies might include progressive taxes, campaign finance reform, expanding voting rights, strengthening organized labor and providing assistance to people in need.
Although proponents of both sets of policies, those particularly aimed at strengthening capitalism and those primarily designed to bolster the democratic political system often differ intensely, for the most part they have resolved their disputes without disruption of the democratic process. The aftermath of the 2020 elections, however, made clear that there is considerably more animosity between these groups than there once was. As Nate Cohn put it in the New York Times, the major political parties now see one another not just as opponents but as enemies. Numerous lawsuits were filed contesting the result of the 2020 Presidential election. The courts resolved these suits, but many Americans, including many elected officials, were unconvinced by the courts’ decisions and appear to remain unconvinced of the legitimacy of the election. Other Americans find this level of distrust both in the legitimacy of the election and in the courts’ decisions to be shocking and impossible to understand. They also find this level of division to be frightening. For the first time in their lives, they are anxious about the stability of American democracy.
Possibly, the aftermath of the election should not have been as shocking as it was. Much has changed in the United States, and the changes that have occurred have set Americans against each other in new and unhappy ways. Why this is so is a complicated subject, but it is undeniable that there has been an enormous increase in economic inequality to which the decrease in a sense of commonality arguably corresponds. Fifty years ago the United States seemed to be pursuing economic policies that would lead to widespread prosperity but in the years since then, the policies that have been enacted into law have led to a system where the largest rewards are concentrated among those at the top of the earnings scale. For most other people and particularly the lower middle class and the poor, income has largely stagnated. The reasons for this shift, among others, are that taxes on corporations and the wealthy have been substantially reduced, regulation of businesses has diminished, labor unions particularly in the private sector have been weakened, spending on what were once called welfare programs has decreased, and efforts to reduce the importance of money in politics have largely been rejected.
The increase in inequality has also taken other forms. As a result of a shift toward harsher criminal sentences, roughly 2.2 million people are currently in jail or prison, a 500 percent increase over the last fifty years. This has given rise to the term “mass incarceration” meant to provoke shame at the fact that the world’s wealthiest country imprisons so many people even though crime rates have fallen. Mass incarceration has two principal characteristics, a rate of imprisonment markedly above the historical and comparative norm for similar societies and a pattern of systematically imprisoning not only individuals but particular demographic groups. In the United States, both characteristics are present; the rate of incarceration here substantially exceeds that of Western Europe and is also unprecedented in U.S. history, and incarceration in this country has become a common experience for a high percentage of poorly educated black men and a smaller but still substantial percentage of poorly educated Hispanic men.
Courts, like other governmental institutions, have been affected in many ways by the changes that the United States has undergone. Moreover, some of the disputes that arise out of the tension between a capitalist economic system and a political system that aspires to be democratic are resolved by courts. There are many different kinds of courts and, to some extent, all of them are engaged in this enterprise. Federal and state appellate courts often address issues that directly involve capitalism and democracy. But other courts do as well although usually less directly. Criminal courts, for example, must determine how large a role incarceration should play in a wide range of situations, including drug cases which are often particularly difficult. For a variety of reasons the level of drug use in the United States became extremely high relative to countries with comparable economies. As a result the drug trade became a major source of economic opportunity for inner city males whose job prospects were eroded by deindustrialization and deunionization. The demand for drugs created a huge market and powerful incentives to participate in that market by selling many kinds of illegal drugs. The drug trade also became a source of increased drug addiction. Thus, high rates of joblessness and a flourishing market for illegal drugs combined with harsher criminal penalties to produce high incarceration rates among young unskilled men. To this day, legislators have failed to enact policies that would create jobs, both in the inner city and in rural America, and thus effectively address the drug issue. Rather, they have used harsh penal laws as a surrogate social policy and attempted to manage a troublesome population of young males by incarcerating them.
Similarly, civil courts are faced with a wide variety of cases in which the issue of inequality is present in one form or another. Sometimes, it is because one of the litigants has considerably more resources than the other. This is common in many, if not most, civil cases including, for example, cases involving debt collection, eviction, and the like. And, in some situations, this means that one of the litigants will be represented by counsel and the other will not. In recent years, courts have had to deal with an increasing number of cases where at least one of the parties appears pro se. This is true not only in state and municipal small claims courts but in almost all courts, including federal courts. In the federal district court in which I sit, for example, there has been a substantial increase in civil rights cases brought by prisoners alleging improper treatment by prison officials in some form or another. Dealing with these cases is often difficult. A fairly significant percentage of prisoner claims are strong enough to survive a motion for summary judgment. The cases then have to be settled or tried and, if they are tried, it is usually necessary to recruit a lawyer to represent the plaintiff at trial. The number of lawyers willing to take these cases is, unsurprisingly, not large.
In resolving all of these cases, the task of courts is the traditional one of treating the parties fairly and respectfully and of applying the law fairly. But, in playing their traditional role, courts are, as discussed, operating in a new context. Not since the time of the Civil War have courts had to function under circumstances in which the public is so divided and in which the survival of our democratic political system, out of which originate all of the laws and rules that courts apply, and which not very long ago was taken for granted, seemed less assured than it does now. As stated previously, the aftermath of the 2020 presidential election has created uncertainty about the stability of our democracy. Except possibly for federal and state appellate courts, which sometimes address questions that involve the democratic process, courts can do little that directly bears on this subject. Probably the most important thing they can do to strengthen the democratic process in this difficult context is to work as hard as possible to adjudicate the matters that come before them neutrally and apolitically so as to clearly demonstrate that they are performing their assigned task in our governmental system.