Lawyers: Stem the Crisis of Trust

Justice Robert Thomas“As we gather tonight, our nation is suffering a crisis of trust. As officers and agents of the law, our response must not be to give in to that sense of mistrust, to give in to cynicism and despair. Instead, our challenge, our responsibility, is to use the awesome privilege we have been given as attorneys and judges to ensure that, whatever the perception of the law and legal system might be, it is always and only ever fair, equitable, and just in practice.”  ~Justice Robert R. Thomas

Supreme Court Justice Robert Thomas used the recent occasion of the annual gathering of the Illinois State Bar Association and the Chicago Bar Association honoring the members of the Supreme Court to deliver a serious message and a call to action. Shared below are some of his remarks. They portray why he has been the driving force behind the creation and mission of the Commission on Professionalism:

As we gather tonight, our nation is suffering a crisis of trust. No one can deny this, and unlike previous seasons of uncertainty, this one seems to penetrate every sphere of life. Politically, the country is split right down the middle on a whole host of issues, with both sides convinced they are right and neither side looking for – or even inviting – compromise. This is true of immigration reform, our response to ISIS, the Health Care law, same-sex marriage, abortion. On each of these issues – and on many many more – the country is deeply divided, with no room to meet in the middle. But not only that, on each of these issues, both sides are convinced that they are on the losing side, so that the resulting dynamic is not one of winners and losers, but one in which everyone feels like his or her values, his or her issues, are being marginalized. The last time that more than 50% of Americans believed the country was heading in the right direction was June of 2009.

Institutionally, poll after poll confirms that we as Americans have very little confidence in our leaders. Congress’s disapproval rating has hovered steadily above 70% for the last three years, and President Obama’s disapproval rating is now consistently above 50 percent. But even more telling is this: Historically, Americans have tended to hold Congress as an institution in very low esteem, while holding their own local representative in very high esteem. In other words, the problem isn’t my Congressman, it’s everyone else’s Congressman. Not anymore.

Earlier this year, an ABC news poll confirmed that, for the first time in the 25-year history of that poll, more than half the country disapproves not only of Congress as an institution, but also of their own local representative. This has never happened before, and it is deeply illustrative of the crisis of trust we are facing.

And then there is Ferguson. And Ferguson is unique among all the situations I’ve described because at the heart of Ferguson is the system that you and I serve.  When trust breaks down in Washington, or on Wall Street, that’s important. And that’s unfortunate. But there’s not a whole lot you and I can do directly in response, to restore trust and move things forward, because we are not in Washington, and we are not on Wall Street. But we do serve the legal system. And that system is at the heart of the Ferguson crisis, and there is no question that for many in our country, trust in the legal system – in the system you and I serve – has broken down.  Look at what we’ve been seeing.

-Protesters taking to the streets by the thousands, with slogans like ‘Hands Up Don’t Shoot.’ ‘Black Lives Matter.’ And ‘The System Didn’t Fail; It worked. That’s the Problem.’

-Students at our elite law schools, including Harvard, Berkeley, and Penn, staging walk-outs and die-ins to protest a grand jury’s refusal to indict.

-Calls for systemic criminal justice reforms from voices as diverse as President Obama and Senator Rand.

Yes, Ferguson was the catalyst for the current wave of response. But what’s clear is that Ferguson did not cause the underlying mistrust and resentment. On the contrary, the events of the past months, and even more of the past weeks, are born of a deep division, a deep mistrust, that exists in our country. And though that division is now boiling over, the reality is that it is always simmering just beneath the surface, just waiting for a Michael Brown, a Trayvon Martin, an Eric Garner, to release it.”

Justice Thomas spelled out lessons underscored in the wake of Ferguson:

[These events] teach us that racial division, and racial mistrust, is still very much a part of the American landscape.

They teach us that, in many parts of America, trust has broken down completely between the community and the police, and that for many, the appearance of law enforcement provokes not comfort or security, but rather suspicion and fear.

They teach us that, to many in our community, the criminal justice system appears rigged, existing not to ascertain truth or dispense justice, but instead to punish the weak and protect the powerful.

But most of all, they teach us once again that, in so many areas of life – race, crime, poverty, class, justice – there seems to exist two very different Americas, defined by two very different perspectives, and populated by people who do not understand, and do not trust, either each other or the institutions that shape and govern life in the United States.”

Justice Thomas opined about the implications of this breakdown in trust:

[And] when trust has broken down, conversations about who is right and who is wrong, about who gets it and who doesn’t, are fruitless. Because no one is listening to each other anymore, and each side simply assumes that the other side is motivated not by a good faith pursuit of truth, but rather by an agenda, or by prejudice, or even by malice.”

Later Justice Thomas went on to draw a dichotomy between two possible responses we could have: cynicism/despair or hope:

In cynicism and despair, we resign ourselves to the status quo, expect the worst, and look out for ourselves. We surround ourselves with people who see things the same way we do, and we turn our backs to those whose experiences and perspectives – challenge, or even threaten, our own. Cynicism and despair are about preserving and surviving, rather than growing and healing. They’re about not letting things get worse, rather than striving to make things better. They’re about hunkering down, rather than reaching out. So yes, we can choose cynicism and despair. And in fact many of us do.

But we can also choose hope. And hope, as you would expect, looks very different. In hope, we intentionally and regularly remind ourselves – daily if necessary – of the ideals and principles that inform the system we serve, and we commit ourselves over and over again to ensuring that those ideals and principles are realized and vindicated in every case that crosses our desk. We commit ourselves to ensuring that, to the extent it is within our power, the shadow of injustice, inequality, or corruption never taints the work we ourselves do. And we commit ourselves to ensuring that the laws set forth in the Constitution and passed by the legislature actually mean something. That the private contracts we enter into are worth the consideration that was exchanged. And that rights set forth on paper are not just empty promises, incapable of enforcement or vindication by a neutral tribunal. But instead are real, tangible things that are never out of reach, and always ours to enjoy.”

Hope is not the only response Justice Thomas urged. He went on to remind the lawyers and judges in the audience that they are stewards and guardians of the Rule of Law governing human interaction in our country. Through our actions, he noted, we are teaching citizens about the principles of our system of justice:

It has been said that the law is a teacher. That through its mandates and proscriptions, society is schooled in what is right and what is wrong, what are the acceptable standards of human behavior, what are the rules defining and governing proper human interaction. Our task, our responsibility, is to ensure that the law is a good teacher. And in moments such as this, when trust breaks down, to respond in such a way that the best angels of our nature are reflected not only in the law’s words, but also in its enforcement and application. Every time. No exceptions. And to the extent each of us plays a part in making that happen, I hope and expect that the justice we pursue, and the justice we bring, will be utterly unimpeachable.”

Heads nodded throughout the speech last week. And at the end, people jumped to their feet in long applause. The speech was stirring.

I hope you’re inspired to put Justice Thomas’s challenge to action. As you fight mistrust and embrace hope, why not also make a New Year’s resolution? Resolve to devote a few extra hours each month during 2015 to working for legal education of the public, legal reform or pro bono service. The opportunities to make a difference abound. If you need some direction, check out the Constitutional Rights Foundation, our pro bono page or that of the American Bar Association, Illinois Bar Foundation or Chicago Bar Foundation.

Research shows that doing good is good for you as well. So this resolution counts toward a New Year’s resolution of achieving greater health and wellness too.

This time next year, let’s look back and be able to say that we’ve helped move the needle from crisis toward trust.

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