Justice as a Discretionary Expense Where Did We Lose Our Way and How Can We Find Our Way Back?

December 3, 2015

By Bob Glaves  |  CBF Executive Director

Somewhere along the way from the time of our nation’s founding to today, the principle of justice for all went from being fundamental to who we are as Americans to something that is largely treated as a discretionary budget item at all levels of government. As a result, our nation’s promise of justice for all increasingly looks like an empty one to most Americans–and we all are losing something vital to our national identity in the process.

How did we lose our way on something so integral to who we are as Americans? And more importantly, how do we get ourselves back on track? While I don’t pretend to have all the answers, I do know this: it won’t just happen by itself. All of us in the legal community, both individually and collectively, need to use our influence by taking the lead in making this case to our elected officials and to the public.

In the beginning€¦

When you think about the history of the American Revolution and all that led up to it, the principle of justice and the colonists’ feelings of injustice at the hands of their British rulers is a common thread. The Boston Tea Party and the reaction to the attempt by the British to impose the ironically named Administration of Justice Act (which was viewed as anything but in the colonies) are just two more well-known examples of the feeling of injustice that helped stoke the revolution.

Take a look at the Constitution and you will find that the idea of justice for all indeed was very fundamental to the founding of our country. In the Preamble to the Constitution, after expressing their desire to form a more perfect union, the first embodiment of how our founders proposed to do that was to establish justice. They put that before insuring domestic tranquility or providing for the common defense, and as Jim Sandman of the Legal Services Corporation often notes, that was no accident.

A little more than 100 years later, the Pledge of Allegiance was born, and as we entered the 20th century and continue today, it reflects our loyalty to the United States flag and our country’s core values that it represents. We all know the Pledge ends with the commitment to justice for all, underscoring once again just how fundamental that principle is to who we are as Americans.

Where did we lose our way?

Flash forward to today, and not only is the Pledge something kids everywhere recite in school, Congress and just about every other government body reaffirms it each time  they start their daily business. But right after they pledge justice for all, they turn around and treat virtually every investment necessary to fulfilling that principle as a discretionary expenditure. Congress treats the entire third branch of government with this discretionary approach including funding for the courts, legal aid for people who can’t afford necessary legal help, and other attendant expenses and that is the case at virtually every other level of government as well. While it isn’t clear when this began to be the case, treating it as a discretionary expense has meant that courts too often have to fight for even basic support, and legal aid in particular has been chronically and dramatically underfunded.

Nowhere is this dynamic more apparent than with funding for the Legal Services Corporation (LSC). Funding for legal aid is an integral part of fulfilling our nation’s fundamental responsibility of ensuring equal access to the justice system, and LSC is the federal government’s principal vehicle for providing that funding. Yet since 1981, as the number of Americans eligible for legal aid has increased by more than 50% to a record of more than 60 million people, Congress now allocates over 50% less in funding for LSC than it did in 1981 after adjusting for inflation. In large part due to this long-term underinvestment, more than half of people in need of legal aid are turned away due to a lack of resources.

This dynamic is about to play out in Congress once again over the next two weeks. After their recent 2016 budget deal, Congress and the President already have agreed to a modest increase in domestic discretionary spending. That is the part of the federal budget where funding for the Judiciary, the Department of Justice, the Legal Services Corporation (LSC) and other appropriations integral to the functioning of the justice system are found. That funding competes in the same budget with funding for unrelated programs like NASA, the Department of Commerce, and the National Science Foundation. While these programs all have their merits, they do not impact fundamental American values in the same way, and the fact that justice-related funding is lumped in with these other discretionary expenses speaks volumes. And there is a real possibility that already deficient funding for LSC could be cut yet again this year while other truly discretionary programs receive increased funding.

Something is very wrong with this picture, and it is up to us in the legal community to take the lead in doing something about it.

How do we right the ship?

The current disconnect between this fundamental principle and the merely discretionary government support for it did not develop overnight, and getting things fully back on track will take some time as well. There are things we can do right away though, and no time to waste.

The first order of business for those of us in the legal community is to let our elected officials know that funding for the Legal Services Corporation should be a priority in the 2016 budget. Watch for more information on how you can do that on the CBF website soon.

Longer-term, there are several key steps that we need to take, both individually and collectively, to right the ship. I’ll be talking about each of these steps in more detail in the coming months, and for now I’ll highlight them in brief:

Civic Education: In recent surveys, less than 40% of Americans could even name the three branches of government. In fact, in one survey a few years ago, more people could name the three judges on American Idol when asked those two questions together! The percentage of Americans who have a good understanding of the functioning of the third branch of government is even lower, and improving that is a key part of the solution.

Prioritization: As a legal community, while we all have many interests, ensuring the justice system is fair and accessible to everyone is our common cause. A key part of our leadership responsibility as a profession is to educate government, the public, and other stakeholders about the importance of access to justice. Too few of us are truly prioritizing that in our professional lives, and the solution starts with us. If you haven’t taken the CBF’s Justice Pledge, doing so is one concrete step you can take now!

Advocate and make our voices heard: A big part of prioritizing this cause is to make sure we are reaching out to our elected officials at all levels of government to make the case for properly funding and supporting the third branch generally and funding legal aid and related access to justice initiatives in particular. You can learn more about how you can get involved on the CBF website.

We have a powerful voice as a legal community when we come together around these issues, and we can make a real impact here. The amount of money it will take to right the ship is not the major issue, it is finding the political will to invest properly in this cause. The amount of money that would need to be spent to get us back on track is almost a rounding error in the scope of most government budgets. For example, funding for the Judiciary in the federal budget is less than 0.2% of the overall budget, and for LSC it’s a tiny fraction.

As our nation’s founders recognized long ago, fairness in the justice system should never depend on who we are or how much money we have, or there will be no justice. Let’s all pledge to do our part and make sure we start walking the walk to fulfill that fundamental principle.