The Founding Fathers separated our government into three co-equal branches by design, with each, at times, checking the other branches and holding them to their limited purpose.
Alexander Hamilton especially understood the challenge inherent in preserving an independent but accountable role for the judiciary. As he explained in The Federalist No. 78, the courts are in “continual jeopardy of being overpowered, awed or influenced by its co-ordinate branches.”
Today, our state courts face budget cuts that threaten the kind of independence described by Hamilton, and intended as well by the drafters of state constitutions. These budget shortfalls limit the ability of the courts to function, and to remain an effective forum to punish criminals and for the American people to resolve disputes.
According to the National Center for State Courts, 42 states cut funding for their judiciaries in 2011. Its most recent survey found that 34 states have laid off staff and 23 have reduced hours.
Earlier this year, Alabama authorized its courts to close its clerks’ offices up to 10 hours a week.
In New York, court administrators shaved 30 minutes off the workday to save money.
In Georgia, the budget is so lean that courts solicit pen and pencil donations from vendors like LexisNexis and Westlaw.
Sadly not a single state in America spends more than 4 percent of its annual budget on its judiciary, and too many states fund their courts at less than 1 percent. Across the United States, state judiciaries must try to operate on less than some individual departments in the executive branch.
And yet, the needs of our modern justice system continue to grow. According to a Court Statistics Project report, the vast majority – approximately 95 percent – of all legal cases are filed in state courts.
In 2008, the most recent year for which data is available, states reported 106 million incoming trial court cases. That figure surpasses every record from the preceding 35 years. Remarkably, the number of incoming cases per general jurisdiction judge often reached into the thousands. In 2008 alone, a typical South Carolina judge handled a caseload of 4,842 incoming non-traffic cases.
Our legal system must be accessible to be just and fair. We can and should address the problem of needless or abusive litigation, but making the courts less efficient and available for all cases is not the answer.
Many state constitutions provide a specific right to remedy in the courts. Those mandates are in tension with many of the court funding cuts we now see in jurisdictions across the country. In Alabama, “[a]dequate and reasonable financing for the entire unified judicial system shall be provided.” In Maryland, “[t]hat every man, for any injury done to him in his person or property, ought to have remedy by the course of the Law of the Land, and ought to have justice and right, freely without sale, fully without any denial, and speedily without delay, according to the Law of the Land.”
Budget-cutters have not likely considered these constitutional declarations when they cut court budgets. To be sure, every part of government must do “their fair share” in times of fiscal crisis. But the courts simply must be open, available and adequately staffed.
No one would accept closing one day a week other entities that enforce the law. Our justice system is no different. Our courts protect lives. It is time to stand up and speak out for our courts, so that they can protect us.
The people should not have to jump over substantial budgetary hurdles or endure excessive delays to reach the courtroom. Whether it is the state seeking to bring a criminal to justice swiftly and effectively, or, private citizens seeking the judgment of a court in a child custody case, a business dispute, or for the protection of fundamental rights under the law, courts need to be able to mete out justice efficiently and with the resources that ensure accuracy.
Surprising bedfellows can make the strongest advocates for change. Regardless of other issues that divide today’s political spectrum, all policy leaders should be able to stand shoulder to shoulder when it comes to the need for adequate and sustainable funding for our courts. Our liberty depends on it.
Edwin Meese III served as the 75th U.S. Attorney General and is a board member of the Federalist Society. William T. "Bill" Robinson III is president of the American Bar Association.