Public confidence in the US courts has taken a nosedive in recent months, continuing a downward trend that began a decade ago.
A poll from the National Center for State Courts in October revealed that the US Supreme Court’s fall in public confidence was most precipitous, declining from 63% approval to 53% from last year’s standing. It is also 20 points lower than the public’s confidence in the Supreme Court a decade ago.
State courts remain the most trusted government institution this year, endorsed by 60% of the public. However, regard for state courts has dropped 4 points in the last year.
To remain a legitimate and effective institution, the standing of the nation’s courts remains far below where it needs to be.
There are many reasons why public confidence in American courts has plummeted. Perhaps most notable is the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which eliminated the constitutional right to an abortion—a right that had been recognized for more than 50 years and was supported by a majority of Americans.
Seemingly political behavior among jurists has added to the falloff. But there is a silver lining.
Eighty-four percent of poll respondents agreed that trial by jury has the salutary effect of ensuring that “courts and judges only make decisions based on the Constitution, the law, and the facts of each case.” These respondents are surely onto something.
The jury’s ability to serve as a legitimating force has roots in the country’s founding.
Thomas Jefferson once mused, “Were I called upon to decide, whether the people had best be omitted in the legislative or judiciary department, I would say it is better to leave them out of the legislative. The execution of the law is more important than the making of them.”
Instilled in Founding Principles
For this reason, the Constitution secures jury trials through the Sixth and Seventh Amendments in both the criminal and civil contexts. As the democratic voice of the judiciary, the jury checks maladministration of justice by tying the hands of judges to the mast of the community’s conscience. It is an integral part of the Constitution’s system of checks and balances.
At least that was the idea.
In practice, the jury’s democratic promise has been hollowed over time through legal, political, and practical challenges—particularly in the civil context.
As we discuss in a recent article in the Georgia Law Review, the vast majority of civil disputes today are either summarily dismissed by judges prior to trial or submitted to binding, juryless arbitration. On average, a federal judge today presides over fewer than two civil jury trials per year.
Some state courts don’t fare much better. In 2019, the entire state of Hawaii reported just a single civil jury trial, and Alaska reported zero.
The pandemic also hit jury trials hard.
The result is that civil juries today play a more minor role in resolving disputes than at any other point in American history.
Fixing the Problem
This trend can and should be reversed.
Empirical studies show that certain strategies help reintroduce juries, and thereby democracy, into the civil justice system. Simple changes can remove barriers to jury trials, such as adopting a jury-trial default rule, removing damage caps, and expanding procedural experimentation.
Also effective is giving jurors the tools they need to reach fair and accurate decisions. Effectiveness can be bolstered by ensuring representative juries drawn from the community, returning to 12-people juries, and adopting other active jury reforms.
The public’s crisis of confidence in the judiciary is multifaceted. But bringing people back into the administration of justice and empowering them to reach informed verdicts may offer one path toward democratic renewal.
Alexis de Tocqueville recognized in 1835 that because citizen-jurors “pay attention to things other than their own affairs, they combat that individual selfishness which is like rust in society.”
Indeed, reviving the jury can help redirect not only the judiciary, but the nation as a whole, back toward its democratic aspirations.
This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.
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Valerie P. Hans is the Charles F. Rechlin Professor of Law at Cornell Law School.
Richard L. Jolly is an associate professor of law at Southwestern Law School.
Robert S. Peck is president of the Center for Constitutional Litigation in Washington, D.C.