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When siblings are bickering, one will sometimes say, “You better stop it, or I’ll tell Mom!” Adults just say, “See you in court!” The sentiment is the same — there is an adult in the room somewhere, someone who will not take sides in ending fights and righting wrongs.
And so high on my gratitude list this Thanksgiving is something about which we often complain and usually take for granted — the court system. Courts are the adult in the room.
Of course, courts don’t always get it right. There are bad and biased judges, and the judicial system reflects the inequities of race and power that plague the rest of society.
Nonetheless, we depend on that system to tame the haughty and powerful, be it Sam Bankman-Fried or Amazon. We expect the courts to arbitrate our bitterest culture wars. We rely on courts to protect children, cope with crimes and enforce contracts.
As imperfect as it may be, without our system of justice we would be left adrift to squabble, suffer unfairness, seek revenge and try to find refuge in a clan or tribe instead of prospering in an orderly society.
And courts are proving indispensable in protecting democracy. In 2020, 61 judges rejected Donald Trump’s ramshackle challenges to the election. Now his suspicious personal, business and political conduct is being scrutinized in court. Amid all the politicking, it has been reassuring, even stirring, to watch the four criminal cases and the civil fraud case against him wend their way forward in that methodical, careful, transparent way, with the full due process for him and his co-defendants that is the hallmark of the judicial system.
Courts can play this democracy-shielding role because they are doing something rare — conducting a reasoned search for the truth.
Lying is deadly to democracy, which depends on an informed electorate. But, let’s face it, we are stuck in a pandemic of lying. Even the nation’s leading cable news network, Fox News, had to pay $787 million for its lies about voting machines.
But courts are a no-lie zone. In court a lie under oath is a crime, and lawyers are ethically bound to candor.
We need to recognize that truth is not something that just happens or that we can take for granted. In his book “The Constitution of Knowledge,” award-winning author Jonathan Rauch describes what he calls the “reality-based community.” This community is the series of sophisticated institutions, governed by norms and ethical standards and staffed by professionals, that evolved to gather, test and distribute information in a search for truth.
Finding truth takes institutions because no single individual is capable of finding it. We soak up what our tribes tell us. Our minds fasten on to information that supports what our emotions have already decided.
The tedious, expensive, often arcane court procedures underscore how difficult it is to get to the facts. All parties must get a full opportunity to present their version of the truth, using only reliable and nonprejudicial evidence, and to attack the other side’s version. Central to the spirit of the whole enterprise, jurors are told to set aside their passions. Judges explain or write out their decisions, where an unparalleled quality control process subjects them to review by entire groups of appellate judges.
Besides this complex legal system, Rauch points to three other components of the reality-based community. The other three are the networks of scholars and scientists who publish and debate their ideas in peer-reviewed journals, mainstream journalists whose work is fact-checked and edited, and government agencies that gather statistics and conduct research.
What is so alarming is all three of these other truth-generating institutions are in trouble. Attacks by Donald Trump and others who aim to stir up conflict, together with the politicization of all spheres of American life, have markedly eroded the credibility of science and academia, the mainstream press and government.
That means we need to be especially vigilant about threats to the court system. The judiciary remains the most trusted branch of government, but its standing has slipped. With good reason. Confirmation of federal judges has become political theater, state judicial elections have become more partisan and public political pressure seems acceptable.
But the biggest threat is that undermining courts is the road to autocracy. In their bestselling book “How Democracies Die,” Harvard’s Steven Levitsky and Daniel Ziblatt call it “capturing the referees” — ousting, bribing or impeaching judges or packing the courts. The highest court in Hungary was expanded from eight to 15; in Venezuela from 20 to 32.
More familiar history: Hitler simply purged uncooperative judges, and the Nazis established special courts to handle political offenses.
As if in a bizarrely bad dream, we can see Trump traveling that road. He has said that each of the judges in the cases against him is biased. He has made claims about their family members. He accused one of rubber stamping a Communist plot. He recirculated a “fantasy” that a judge should be placed under citizen’s arrest. Trump attacked Judge James Robart when the judge struck down Trump’s travel ban early in his presidency, and Robart received over 100 death threats.
Human nature has a dark side — selfish, aggressive, crude. We live in an era when our baser instincts too often get free rein. Human nature is hard to change, but one of humanity’s finest accomplishments has been the creation of institutions to control and channel our darker impulses and create a culture that mirrors our best selves.
For all its shortcomings, the institutions of our beautiful country have made it the freest and most inspiring nation in the world. Protecting these accomplishments starts with appreciating them.
So this Thanksgiving, let’s be grateful that despite all the perils, there is still an adult in the room.
Bruce Peterson is a senior district judge and teaches a class on lawyers as peacemakers at the University of Minnesota Law School.
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