Since the levees burst in New Orleans and the interstate bridge collapsed in Minnesota, much has been written and said about the need to repair the nation’s infrastructure, too much of which is frayed and crumbling because of years of underinvestment. This transpired while tax cut after tax cut went to the wealthiest in our society, and billions were squandered on wars of choice and high-tech weaponry. This neglect of infrastructure resulted in bodies littering the banks of the Mississippi on the Gulf Coast and floating in the wreckage of a highway a thousand miles upriver.
The American Recovery and Reinvestment Act (a k a the stimulus bill), passed earlier this year, has begun the process of rebuilding our infrastructure, as well as retooling for a greener country. This investment is a long-overdue correction of our misguided national priorities. But there is another infrastructure that has been at best neglected and at worst assaulted in recent years, and that is our infrastructure of justice.
To some extent the infrastructure of justice is physical, including courthouses, prosecutors’ and public defenders’ offices–and prisons. We certainly have not neglected building prisons in recent years, as draconian sentencing laws have put a record number of men and many women behind bars. This has been the greatest boom-time in recorded history for the prison-industrial complex. But far more than bricks and mortar, the infrastructure of laws and policies and human capital tell the story of the health of justice in America.
Given the nature of the justice system, repairing the broken infrastructure is not simply, or even primarily, a matter of federal action. What is required is an understanding of the pieces and what needs to happen at various levels, with the right leadership, to put them back together.
Let’s start with influencing who sits on the federal bench. More than pushing for individual nominees, we need to change the sorry frame of the debate about judges and the roles they play in our democracy. President Obama has begun that process with the successful nomination of Sonia Sotomayor as a Supreme Court justice. Sotomayor cast her first vote on the Court in a death penalty case, supporting the claims of the defendant. By any measure, she is among the most qualified new justices of the past century. In stressing her real-world experience, the president tried to move beyond the tiresome wedge issues over which Supreme Court nominations have recently been waged. But conservative judicial activists insisted on waging old battles; in the end, only nine Republican senators voted for her confirmation.
We have lost ground steadily in debates over the Supreme Court and the role of judges generally in recent decades, because we have allowed those debates to be framed almost entirely in terms of issues like abortion and the separation of church and state. We need a Court that forcefully upholds both the separation clause and the right to abortion, of course. But we also need a Court that is, as the president has put it to the derision of the right, “empathetic” to those who have been economically marginalized in a society whose key institutions have always sided in recent years with the rich against the poor. If we can get people to care about the Supreme Court not just because it is going to stop a judge in Alabama from putting the Ten Commandments in his courtroom, not just because it is going to force the government to treat a suspected terrorist more fairly, but also because the Court has a critical role to play in supporting fairness for working people, we will have made a genuine and important change in this country’s politics.