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24 Yale Journal of Law & the Humanities 19 (2012) (with Dennis E. Curtis)


This essay – and the thirty images included – reflect themes in Representing Justice: Invention, Controversy, and Rights in City-States and Democratic Courtrooms, in which we explored the relationship, over centuries, between courts and democracy. We argue that courts as we know them today are recent inventions. The constitutive elements – open access, independent judges authorized to sit in judgment of the state and to assess the fairness of their own as well as other decision-making procedures, equal and dignified treatment of all participants – are outgrowths of social movements that transformed the meaning of legal “personhood,” the idea of justice, and the obligations of government.

Yet the new equality puts pressure on the visual displays within courthouses, often marked as such by a statute of the Virtue Justice. As women and men of all colors gained recognition as rights holders, entitled to sue and be sued, to testify, and to judge, a female figure of Justice, became less an abstraction and more a representation of a person.

But who should decide how “she” – Justice – is to look? Once, elite groups of rulers and patrons controlled commissions – filling courthouses with portraits of elder statesmen along with the draped (or naked) female figure of Justice. In contrast, during thetwentieth century, conflicts over Justice’s color and shape came to the fore. Protests, detailed below, erupted in the 1930s about a “mulatto” Justice in a federal courthouse in Aiken, South Carolina. The result was to put the image behind drapes. In contrast, inthe same era, a mural on the Ada County Courthouse in Idaho displayed an “Indian” with hands tied behind his back and about to be strung up by gun-carrying men.

Pressures of another kind are undermining the public and didactic practices of adjudication. Democracy has not only changedcourts but also challenged them profoundly. Egalitarianism poses deep problems for polities that have thus far been unwilling to commit the resources that would support all the adjudicatory opportunities promised. As the ranks of rights holders expanded, nations responded not only by creating more judgeships and more courthouses but also by moving some forms of adjudication offsite, to administrative tribunals and to procedures that have come to be known by the acronym ADR – alternative dispute resolution. The resulting fragmentation and privatization of adjudication has profound implications for the democratic character ofcourts.

The movement away from public adjudication is a problem for democracies because adjudication has important contributions to make to democracy. By democracy, we speak not of majoritarian political processes but rather of aspirations for lawmaking through egalitarian methods that foster popular input into governing norms and impose robust constraints on both public andprivate power. Furthermore, by courts, we focus on the quotidian activities of ordinary litigation rather than only on the outcomesof the highest judicial bodies. Constitutional scholars debate the legitimacy of judicial review in democracies, while we argue that adjudication itself is a democratic process, which reconfigures power as it obliges disputants and judges to treat each other as equals, to provide information to each other, and to offer public justifications for decisions, based on the interaction of fact andnorm. Courts’ mandate to operate in public endows the audience – the public – with the ability and the authority of critique. Through such participatory parity, public processes both teach about democratic practices of norm development and offer theopportunity for popular input to produce changes in legal rights. The redundancy of various claims of rights enables debate aboutthe underlying legal rules. The particular structural obligations of trial level courts have advantages for producing, redistributing, and curbing power in a fashion that is generative in democracies.

Our account is not only a reconstruction of a many-century history of the idea of “courts” and a normative exploration of the utilityof courts for democratic orders. Our aim is also to make plain the fragility and contingency of the twentieth-century project for which the word “court” has become a shorthand. While monumental in ambition and often in physical girth, the durability of courtsas active sites of public exchange before independent jurists ought not be taken for granted. Like other venerable institutions ofthe eighteenth century – the postal service and the press – courts are vulnerable. The continuation of accessible court services for ordinary disputants seeking state assistance is far from assured.

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