IN THEORY America’s three branches of government are equal. In practice the judiciary is the weakest, as Alexander Hamilton cautioned in “The Federalist Papers”, because it controls neither sword nor purse. Of late, state legislatures and executives have been closing their purses as they struggle to balance tight budgets. At the same time, the federal bench is being weakened by both stagnant salaries and frozen politics. This is now swelling dockets, delaying cases, and reducing access to the legal system.
Ask, for example, Katherine Feinstein, the presiding judge of the San Francisco Superior Court (and daughter of Dianne, California’s senior senator). She says that her court narrowly missed “falling off a cliff” last month by getting an emergency loan. But she expects worse later in this fiscal year because California’s current budget, which has already cut court funding by $350m, contains a trigger for even more reductions. Between 15 to 28 of California’s 58 county courts could go over that cliff in the coming year, she thinks.
How does a court go over the cliff? In unphotogenic slow motion, which makes the dire consequences harder to see. Since the budget cuts started in 2009, says Ms Feinstein, the court has been muddling through. Service has got slower, waiting times longer. An uncontested divorce now takes about half a year, she says. Without the loan, she would have had to lay off so many people that such a divorce would have taken three times as long. With the loan, it will take merely twice as long. That means lives (not just those of the spouses, but also those of children in custodial limbo) are put on hold.
A typical lawsuit now goes to trial within a couple of years, says Ms Feinstein, but that could soon stretch to five years. The backlog of traffic infractions is already so daunting that it compromises enforcement (and the deterrence of bad driving). And so on. The Californian constitution guarantees criminal defendants a right to speedy trial, but it does not technically require courts to administer civil law at all, Ms Feinstein says. So, in theory, civil adjudication could stop altogether, as it already has on one judicial circuit in Georgia. That, she says would bring about the “unravelling of society”.
Courts are in similar straits all over the country. A report by the American Bar Association found that in the last three years, most states have cut court funding by around 10-15%. In the past two years, 26 have stopped filling judicial vacancies, 34 have stopped replacing clerks, 31 have frozen or cut the salaries of judges or staff, 16 have furloughed clerical staff, and nine have furloughed judges. Courts in 14 states have reduced their opening hours, and are closed on some work days. Even the buildings are not immune; around the country 3,200 courthouses are “physically eroded” and “functionally deficient”, says the National Centre for State Courts.
Even criminal cases are not immune. Some crimes, like domestic violence, have increased with the rotten economy. In Georgia, where court funds have fallen by 25% in the last two years, criminal cases now routinely take more than a year to come to trial. This means that jails are full of the innocent alongside the guilty. Their incarceration adds costs far greater than the alleged savings in the court system. Above all, it causes gross injustice.
To many judges, as the American Bar Association puts it, “the underfunding of our judicial system threatens the fundamental nature of our tripartite system of government.” In San Francisco, Ms Feinstein thinks that the judicial branch must start explaining itself more forcefully to legislators. And if that doesn’t work, she thinks it may be time to ask voters directly for money.
As one revered judge, Learned Hand, said in 1951, “If we are to keep our democracy, there must be one commandment: thou shalt not ration justice.”