Designing the Courts
Photo by Jackie Hope
A Conversation with Lauren Mattioli, Department of Political Science, Boston University, Interviewed By Cyd Harrell, User Researcher
As a civic UX practitioner, I spent several years designing interventions to make working with state courts easier—or even possible—for people forced to participate in civil court cases (like child custody, evictions, and restraining orders) without a crucial, designed-in feature of the system: a lawyer.
These were practical projects that most designers would recognize: simplifying instructions for filing a form, showing which local courthouses handle specific types of cases on a map, making sure court websites convey both officialness and welcome while guiding users to the information they need. Lauren Mattioli’s scholarship addresses the design of the U.S. court system, exploring how political actors contest its values and attempt to shape the outcomes courts deliver to the public. When Design Museum Magazine invited me to draw these perspectives together by interviewing Professor Mattioli, I was both intrigued and, I’ll admit, a little bit intimidated. But the resulting conversation speaks, I hope, to the reality that the court system is designed, from the power dynamics embedded within it to the processes it imposes to the signs on the doors (both the official ones and the hastily printed supplements explaining them). As courts are on every American’s mind in the summer of 2022, the design perspective is essential to understanding what is happening, how it came to be, and how we might both relieve some immediate pain and aspire to longer-term, structural change.
Cyd Harrell: First of all, a court is many things from a societal control mechanism, to a set of services expressed in rules and forms, to a ritual space—what does it mean to you to design a court?
Lauren Mattioli: Courts, as political institutions, are designed to solve problems faced by political actors. Courts help to solve the big problems of dispute resolution and legal interpretation. Political systems need some way to deal with disagreements citizens have with government and with each other. Courts provide the setting and procedures to enable that process—that’s dispute resolution. The problem of legal interpretation presents itself in a few ways: unanticipated facts challenge existing laws, laws contradict each other, or a law seems to contradict one of the polity’s higher imperatives. Courts, and, more precisely, the judges that staff them, do this important work. Designing a court might also mean deciding on the physical features of the spaces where laws are interpreted and disputes are resolved. The design of prototypical American courtroom reflects central tenets of the U.S. legal system. Consider how the courtroom represents the notions of judicial supremacy and independence: the judge usually enters from a separate door, she is physically apart from and set above the advocates, she is usually flanked by flags or sitting beneath an official seal, she doesn’t share her space with anyone else, she is on the same side as the witness. So, the design of the courtroom is a physical representation of ideas about what courts do.
CH: Who do you see as the design actors in a court system? How do they play? Who are the stakeholders they respond to?
LM: The politicians who create and empower courts are design actors. The U.S. Constitution only creates one court, the Supreme Court, and delegates the design of all lower federal courts to Congress. Congress has exercised its power over time to alter the number of federal courts, the number of federal judgeships, tiers of the judicial hierarchy, as well as courts’ geographic and substantive jurisdictions. The Judiciary Act of 1789 is the best example of this. The Act added trial and appellate courts to the federal system, creating the three-tiered hierarchy we still use today. Congress has also, at times, responded to demands for courts to process specialized cases (e.g. bankruptcy, international trade).
Congress can also play as a design actor by shaping the resources that flow to courts and adjacent institutions. For example, Congress can allocate lots of resources for staff and clerk salaries…or not. It can pay to renovate and maintain courthouses…or not. It can use its spending powers to encourage certain types of law enforcement activity and discourage others, thus affecting the supply of potential disputes to resolve. It can enable private rights of action, entitling people to enforce their rights through courts. Congress also plays a role in who becomes a federal judge—choosing whether to consider and then confirming or rejecting the president’s nominees—so in this way Congress partially determines who else may be able to act as a designer.
State courts are similar in many ways to federal courts, but diverge in others. State constitutions and legislatures define their judicial systems (similar to the federal model) but might staff their judiciary via elections or merit committee selection (different from the federal model). State courts process many more cases across a wider range of issues than federal courts do, so their systems often reflect this fact with more judgeships and more specialized courts.
Legislators at the state and federal level can be responsive to any number of stakeholders: their entire constituency, their most loyal supporters, their party, their caucus within the legislature, and their donors, to name a prominent few. So, design changes that originate in legislatures can be attributed in part or in whole to any of the aforementioned interested parties, and that attribution may vary across individual legislators voting on identical legislation, and within individual over time. For example, when Congress votes to expand the number of district court judgeships it may be responding to caseload considerations or, may do so for political reasons (de Figueiredo et. al, 2007).
CH: Some design principles that might seem obvious for courts—for example fairness & order (not to mention, in May 2022, precedent)—have been contested at many points in history. If you’re a member of the public, you might hear actors with very different court-design aims espouse the same design principles. How can regular people interpret what kind of design different actors intend, and how it will affect us?
LM: This is a really interesting question. I see design principles being employed in political rhetoric in several ways: to distract, to defend, and to divide.
Distract: A common rhetorical move politicians make is emphasizing what are sometimes called “valence” parameters–these are nonideological characteristics that everyone usually wants more of, no matter what: loyalty, beauty, competence, etc. Design principles, like orderliness, fairness, and efficiency, are valence terms for government processes. A politician who wins her election by a narrow margin might want to emphasize the less divisive features of her victory: the quality of the democratic process. A prosecutor defending his high conviction rate might avoid mention of specific cases (for which people may have well defined ideas about guilt or innocence) by concentrating on “the system of justice” and how well it works. So, uncontroversial design principles can function as a rhetorical crutch for politicians who would prefer not to emphasize their actual behavior.
Defend: Relatedly, politicians often use outcomes to demonstrate the validity of a democratic process, or say that the process is legitimate because of the outcome it produced. Something like: “American elections are free and fair because I won.” Incumbents have an interest in maintaining their own power so they often claim the democratic quality of their election to be higher than it actually was. You may have noticed that incumbents complain about gerrymandering, campaign finance, and voter suppression a lot less than challengers do. Similar rhetorical moves are everywhere, the arguments essentially boil down to something like “the Supreme Court’s lack of transparency is fine because the Court produces outcomes I agree with” or “the Senate can refuse to consider a president’s judicial nominations because I don’t want his candidate to be appointed” or, my personal favorite, “the Constitution is a great, democratic document because America has persisted for two and a half centuries” This teleological orientation helps actors justify the maintenance of unfair institutional designs.
Divide: Finally, orderliness, “normality”, and “civility” are concepts that might be considered design principles, that feature in attempts (often successful) to activate racist, sexist, or classist ideas about opposition to the status quo. A classic example of this is Richard Nixon’s 1968 campaign for president in which he emphasized “law and order,” a strategy which many scholars consider a thinly veiled appeal to white discomfort around racial liberalism. By distinguishing between the lawful and the unlawful, obedient and disobedient, orderly and disorderly, politicians can give psychological cover to people who are reluctant to sacrifice their privilege but don’t want to think of themselves as bigots.
So, how is the average person supposed to know what an actor intends? This is really tough because successful strategic actors know how to conceal their intentions when it suits them. This is especially true when talking about courts because there are well entrenched norms around pretending to value neutrality and impartiality, so the rhetoric might be especially convoluted. It’s safe to assume that liberals are going to try to get more liberal policy outcomes from courts and conservatives are going to try to get more conservative policy outcomes from courts. You’d be hard-pressed to find a judge or elected official that acts according to their beliefs about design if it means betraying their ideology. Bush v Gore (2000) is a great example of this. Conservatives on the Supreme Court went against their longstanding tradition of rejecting equal protection claims and reserving election law decisions to the states in order to rule in Bush’s favor. Liberals set aside a historical preference for federal control in state elections in order to side with Gore (Segal & Spaeth 2002).
CH: Can you say a little about how our system came to be designed as it is? Is there a good example of a particular person redesigning a court?
LM: The drafters of the Constitution and representatives in the first congresses were, predictably, familiar with the British court system. As such, the colonial courts, early state courts, and federal courts shared many features of the British system while rejecting others. One instance of this legacy is still a major design element of courts, the right to trial by a jury of one’s peers. Jury trials were a major rallying point for American revolutionaries after the right was restricted during the colonial period. Juries were and continue to be venerated as a democratizing feature of government (whether they actually serve to democratize is another matter). Other norms, such as a declared preference to free the guilty rather than punish the innocent, come from British common law. Blackstone’s Commentary on the Laws of England codified these norms (itself a controversial move) and was a popular touchstone in early American legal history.
Another influence on the current design of the court system is the experience of living without a national court system during the Revolutionary war and immediate postwar period. The articles of Confederation did not provide for a court with federal jurisdiction. When disputes arose among citizens from different states, the court hosting the trial overwhelmingly sided with their fellow citizens against outsiders. Both Alexander Hamilton and James Madison lobbied for a federal judiciary to deal with such disputes, sharing the belief that a national court system would resolve regional disputes more fairly. As mentioned earlier, the persistent structure of the federal judicial system was defined by the Judiciary Act of 1789. The Act placed an intermediate appellate level (called circuit courts) and lower trial courts (called district courts) under the Supreme Court. Westward expansion and a growing population required that the number, shape, and size of these jurisdictions change.
Politics is collective action, so it is tricky to single out individuals and designate them as uniquely responsible for redesigning a court system, but Chief Justice John Marshall had, with help, outsized influence on the design of U.S. courts.
John Marshall was Chief Justice of the United States from 1801 to 1835—the longest tenure of any chief. His most potent contribution to the design of U.S. courts, and the decision that enabled the Court to be a major influence while the United States was in its formative years, was Marbury v Madison (1803). You may recall that this case established judicial review, but the significance of that move cannot be overstated. The power of judicial review enables courts to declare the actions of the elected branches unconstitutional. This means a popular bill can unanimously pass both houses of Congress, get signed by the president and become law, only to be challenged in court and effectively nullified if a majority of the unelected, un-fireable justices decide the law is inconsistent with the Constitution. In Marbury v Madison, the unelected, un-fireable justices asserted that enormous power for themselves. Without the power of judicial review, federal courts would not have played the role they have in American political history. The power of judicial review shapes what politicians, lawyers, and citizens can expect courts to do.
CH: If someone now wants to design a change to the court system, how does that happen? Are there levers people should know about? Does the independence of individual judges in their courtrooms represent a challenge to design processes?
LM: If an individual wants to design a change to the court system, that can happen in a number of ways. Or, not happen, as the case may be. Broad changes to the court system itself are difficult to implement: the system itself functions incrementally, the system is huge and spans geographic and political boundaries, and engaging with courts is costly in time and money.
There are, of course, exceptions, where motivated individuals otherwise lacking in political power manage to make a big impact. Take Clarence Earl Gideon, a drifter who was serving a five-year sentence for breaking and entering in Florida when he filed a petition to the Supreme Court. Gideon’s case was the vehicle by which the Supreme Court ruled that criminal defendants are entitled to legal counsel (Gideon v Wainwright (1963)) and that states must provide indigent defendants with a lawyer.
A more typical path for individuals to make change through the legal system is to be represented by an interest group with resources and experience whose policy goals align with the individual’s interests. This is a practice called sponsored litigation and was a favored strategy of the NAACP during the civil rights movement. Brown v Board of Education I (1954), the case that declared racial segregation in schools unconstitutional, was an instance of sponsored litigation.
Another option to make a change to the court system is to work through the elected branches of government. When it comes to the federal judicial system, Congress has the most power. It can influence everything from courts’ budgets to membership to jurisdiction (with some restrictions). Reaching out to your representative and senators is the first step.
At the state level, the legislature is an option as well, but many states also have options for direct democracy. Ballot initiatives, while rife with their own set of complications, allow voters to circumvent a recalcitrant legislature.
Social science scholars disagree about the functional level of independence judges enjoy, so to say whether this independence may serve to stymie design processes requires acceptance of the claim that judges are independent. It would depend on the type of change someone was trying to make and the path they chose. Suppose an individual really wanted to see greater racial diversity in petit (trial) juries in their community. This could be pursued in a number of ways. The individual could attempt to audit their jurisdiction’s voter registration rolls (a source of names for jury pools). Individual voters are sometimes improperly removed from these lists—disproportionately marginalized people. The individual could launch a persuasion campaign, encouraging nonwhite people to verify they have not been mistakenly removed from the voter registration lists and, if called, to perform their jury service. Alternatively, the individual could lobby their representative to propose a bill in the legislature that would encourage a particular racial demographic makeup for juries. The individual could, if they live in a state which allows for ballot initiatives, attempt to get such a policy in front of voters. Taking any of these steps could result in a more diverse pool of potential jurors, and such actions which would not depend on the whims of a judge. However, a request for data, a campaign, a statute, and a ballot initiative are all potential fodder for litigation. Outside strategies don’t necessarily get to stay outside.
CH: Having recently spent time working to design forms and processes that reduce the disadvantage of vulnerable parties in the court system (for example people without lawyers in eviction cases), it often feels like this kind of work is a patch—although an urgently needed one right now—on a system with more fundamental problems. How do you see the micro and macro of court design working together (or creating more friction for each other)?
LM: It’s important to remember that for any problem one person or group identifies, another person or group might consider it to be a positive feature of the system. One example is the prevalence of plea bargains to resolve criminal matters. Depending on the court system, 90 to 97% of criminal cases end in a plea bargain. Usually this means the defendant agrees to waive their right to a trial in exchange for a reduced sentence. One reason opponents of plea-bargaining sometimes give for their position is that by threatening individuals with long prison sentences prosecutors might pressure risk-averse innocent people to plead guilty to a crime they did not commit. Proponents of plea-bargaining counter with the efficiency gains plea bargains achieve. Court dockets would be utterly swamped and every case would take longer to be considered if all criminal matters went to trial, many of which would involve defendants who do not dispute their convictions.
Of course, plea bargains are just one part of the larger criminal justice apparatus. Prison abolitionists and others committed to a more comprehensive dismantling of the carceral state might consider an effort to limit plea bargaining misplaced; the argument being that if prisons do not exist, they can’t be used to threaten the innocent into pleading guilty.
CH: I was thinking of examples like making a courtroom less intimidating in its physical design, or making a filing form easier to complete; do such design efforts give people a false sense of equity if the larger system isn’t redesigned? Are they still worth it even if so?
LM: Small scale design changes can be effective for relieving acute human misery, which can create space in a community to pursue larger, lasting reforms. You point out that micro-level can create a false sense of equity which is true, but ultimately short lived. Small victories can build experience, confidence, and momentum within social movements. The trend toward eliminating cash bail is one example. The practice of cash bail is one small part of a perverse system. Eliminating cash bail will not fix the more global problems within the criminal justice system on its own. But, that doesn’t mean eliminating the practice isn’t worth the time or effort required to do so. This is because policies can have direct and indirect effects, which you might define as micro and macro. Directly: eliminating cash bail has been shown to reduce jail populations, which improves life for those in and out of these institutions. People are more able to assist in preparing their own defense if they are not jailed prior to trial. Pretrial detention is correlated with a loss of employment, child custody, and housing–all of which contribute to recidivism. Indirectly: eliminating cash bail reinforces the idea that a defendant is innocent until proven guilty and allows us to consider broader changes to the criminal justice system.
CH: Finally, given a global pandemic that engendered huge changes to court operations plus a recent maximum of political contestation, what are the urgent design questions for courts in the next few years?
LM: I see two urgent questions for courts at present (or maybe forthcoming).
1. How can the court system stop exacerbating the problems faced by race-class marginalized people? Courts are supposed to provide a forum for groups who can’t access traditional paths to power (elections) because they are numerically small, geographically dispersed, or systematically excluded. Sometimes courts achieve this goal but more often they exaggerate existing disparities.
2. How can the court system reconfigure popular notions about the need for judges to be impartial and independent? I don’t know how much longer the myth that judges are neutral arbiters can last. If the judicial branch’s institutional legitimacy is going to survive it may have to be cultivated independently of beliefs about the individual judges who staff it.
References:
de Figueiredo JM, GS Gryski, EH Tiller, G Zuk, Congress and the political expansion of the U.S. districts courts, American Law and Economics Review, Volume 2, Issue 1, January 2000, Pages 107–125, https://doi.org/10.1093/aler/2.1.107
Paul Milgrom, Douglass North, and Barry Weingast, “The Role of Institutions in the Revival of Trade: The Law Merchant, Private Judges, and the Champagne Fairs,” Economics and Politics 2(1):1-23 (1990)
Noel, F. R. (1937). Vestiges of a Supreme Court among the Colonies and under the Articles of Confederation. Records of the Columbia Historical Society, Washington, D.C., 37/38, 123–143. http://www.jstor.org/stable/40067495
Martin Shapiro, Courts: A Comparative and Political Analysis
Segal, J., & Spaeth, H. (2002). The Supreme Court and the Attitudinal Model Revisited. Cambridge: Cambridge University Press. doi:10.1017/CBO9780511615696
Surrency, E. C. (1967). The Courts in the American Colonies. The American Journal of Legal History, 11(4), 347–376. https://doi.org/10.2307/844493
