An impartial, independent judiciary is the guardian of individual rights in a democratic society. In order for citizens to have faith in their court system, all people must have access to the courts when necessary. The author describes how this doctrine works in practice in the United States—in criminal and civil matters—and how the U.S. legal profession contributes to making "equal justice for all" a reality. He concludes the article with examples of the American Bar Association's efforts to improve access to justice beyond U.S. borders through its international rule of law programs.

IN A DEMOCRATIC SOCIETY where the governed relinquish a portion of their autonomy, the legal system is the guardian against abuses by those in positions of power. Citizens agree to limitations on their freedom in exchange for peaceful coexistence, and they expect that when conflicts between citizens or between the state and citizens arise, there is a place that is independent from undue influence, that is trustworthy, and that has authority over all the parties to solve the disputes peacefully. The courts in any democratic system are that place of refuge. U.S. Supreme Court Chief Justice William Howard Taft stated in 1926 that "the real practical blessing of our Bill of Rights is in its provision for fixed procedure securing a fair hearing by independent courts to each individual."

A fundamental value in the American system of justice is that the stability of our society depends upon the ability of the people to readily obtain access to the courts, because the court system is the mechanism recognized and accepted by all to peacefully resolve disputes. Denying access to the courts forces dispute resolution into other arenas and results in vigilantism and violence.

The judicial systems of the United States are structured to ensure access to the courts and equal justice under law for all citizens. The U.S. Constitution and the constitutions of all 50 states contain specific articles on the judicial branch. The judicial systems of the United States are separate, coequal branches of government that maintain autonomy through their own structures, authorities, and rules. The principle of judicial independence, reflected in the federal and state constitutions and in American legal and political history, allows judges to make decisions based on the law and the facts of each case, rather than on popular opinion or political considerations.

The judicial systems of the United States include the federal courts and separate court systems for all 50 states, the District of Columbia, and five territories. These different court systems handle approximately 100 million cases per year, with the vast majority being heard in state courts. At the federal level, approximately 2,200 judges serve across the United States in the following capacities: justices of the Supreme Court, judges of the courts of appeals, judges of the district courts, bankruptcy judges, and magistrate judges. At the state level, approximately 31,000 judges serve on the bench, from the highest court down to local courts of limited jurisdiction.

Each state and territory has the authority to establish and operate its own court system. The structure of state court systems varies from state to state. Some states have "unified," or simplified, systems of only two or three levels, while others have multiple levels of court for different types of cases. Judges are selected by a variety of different methods in the states, including appointment by governors, popular election, and selection by the legislature. Terms of office for state judges range from four years to lifetime tenure.

Equal Justice in Practice

When discussing the idea of access to the courts, mere access in the theoretical or legal sense is not enough; rather, it is the results that flow from the decisions made by the courts that give it meaning. For example, the value of "access" is evident when the courts decide that no one, especially those in positions of power, is above the law, or when access requires the right to counsel in cases where one's liberty is in jeopardy.

The practical application of the fundamental right to access the courts under the U.S. Constitution has been put to the test throughout the nation's history. It has been claimed and challenged by many. Early on, the Supreme Court established its authority over all disputes. In 1807, President Thomas Jefferson claimed executive privilege in a case against Aaron Burr, whom Jefferson accused of treason. In his defense, Burr asked the Court to issue a subpoena compelling Jefferson to provide his private letters concerning Burr. Jefferson refused. Chief Justice John Marshall denied the president's argument and ruled that Jefferson's claim that disclosure of the documents would imperil public safety was a matter for the Court to judge, not the president.

The issue of presidential immunity was heard again almost 200 years later. In 1974, a special prosecutor subpoenaed White House tape recordings in an effort to determine if the president had been involved in a political scandal known as Watergate. President Richard Nixon sought to have the subpoena quashed on the grounds of executive privilege. The Court ruled eight to zero that the tapes should be released, because the Court determined that no person, not even the president of the United States, is completely above the law. In the opinion that followed, Chief Justice Warren Burger wrote, "Neither the doctrine of separation of powers, nor the need for confidentiality of high-level communications, without more, can sustain an absolute, unqualified Presidential privilege of immunity from judicial process under all circumstances."

Perhaps the importance of open access to the courts is best recognized in the criminal justice sector in cases involving the right to counsel. In the United States it has been established that, at least in criminal matters involving the loss of liberty, a person cannot be considered to have adequate access to justice unless the person is provided with legal counsel. In a landmark decision in 1963, the U.S. Supreme Court held that the U.S. Constitution requires that counsel be provided to indigent defendants in state felony proceedings (Gideon v. Wainwright). Subsequent decisions by the Court extended the indigent defendant's right to counsel to state juvenile delinquency proceedings, state misdemeanor proceedings in which actual imprisonment is imposed, state misdemeanor proceedings in which a suspended jail sentence is imposed, and the first appeal to an appellate court. Additionally, the Court has held that the right to counsel first attaches at various critical stages occurring prior to trial, including custodial interrogations, line-up identifications, arraignment, preliminary hearings, and plea negotiations. The decisions are intended to protect citizens from unjust punishments.

Protecting Children and the Disabled

Equal access to the courts is not reserved for adult citizens only. Children deserve the same access to the nation's courts because they too are citizens and deserve their day in court. However, they face additional barriers. Children cannot initiate legal actions without the assistance of adults; they may not know where to turn for assistance or even that help is available; and their voices are often unheard or unnoticed. Yet improving children's access to the justice system can help strengthen families and make victims of crime more likely to disclose their victimization and to support the legal process.

The American legal system has endeavored over the past several decades to make the justice system more accessible and amenable to children and their special needs. Certain court decisions, including several by the Supreme Court, have made testifying in court easier for children. Special procedures, such as the use of closed-circuit testimony and the assistance of special child advocates, can help lessen the potential trauma to child witnesses. Child-friendly courtrooms, where the furniture is scaled down in size or where the judge does not sit high above everyone else, can help children feel more comfortable in the courtroom setting. Many jurisdictions have implemented interdisciplinary approaches that tailor interventions on behalf of children to reduce further victimization.

More recently, disabled Americans challenged the courts themselves over meaningful access to the courts. In Tennessee v. Lane (2004), plaintiffs, including a paraplegic man who had to crawl up two flights of stairs to attend a hearing in a Tennessee courthouse, sued under Title II of the Americans with Disabilities Act, claiming that the physical impediments to enter the court buildings violated their rights. The American Bar Association, in its amicus brief, argued, "The courts must be a model of accessibility." The brief went on to say, "They [courthouses] must be barrier free — and thus open to all ... vital to the legitimacy of and public confidence in the administration of justice. A lack of equal access to the courts harms not only those persons who are excluded, but also the system itself." In the majority opinion, Supreme Court Justice John Paul Stevens held that Title II was constitutional "as it applied to the class of cases implicating the fundamental right of access to the courts." Thus, the decision forced every courthouse and public building in the United States—including the U.S. Supreme Court—to accommodate the disabled by installing entrance ramps, special elevators, hand rails, handicapped-accessible bathroom facilities, and other modifications.

The Legal Profession's Commitment

The Constitution establishes the fundamental right of access to the judicial system. The courts, as guardians of every person's individual rights, have a special responsibility to protect and enforce the right of equal access to the judicial system. If the courts have this special responsibility but no judicial police force to enforce their rulings, why is there general compliance? Two important reasons stand out: (1) public trust and confidence in the system overall, and (2) a strong commitment by the organized bar to work with the judiciary to establish and demand compliance of judicial decisions.

As president of the largest bar group in the United States, I consider it important to discuss how this second point intersects with the judiciary. If the judiciary is the guardian of the rights of the people, the organized bar and its lawyers are the foot soldiers. The legal profession and the practicing bar bear a large share of the burden. With this in mind, the American Bar Association (ABA) has established 11 goals to be pursued in its quest of "Defending Liberty and Pursuing Justice." The second of these goals is "To promote meaningful access to legal representation and the American system of justice for all persons regardless of their economic or social condition."

It was in defense of this goal that the ABA submitted its amicus brief on behalf of disabled Americans in Tennessee v. Lane. When the Watergate scandal broke, Chesterfield Smith, then president of the ABA, issued a press release that stated "no man is above the law," a quote that later appeared in all major U.S. newspapers. Subsequently, the ABA House of Delegates — composed of 474 legal representatives from all 50 states and the U.S. territories — voted unanimously against granting legal immunity to President Nixon.

The organized bar has long recognized that it must speak out for the judiciary when it cannot speak out for itself. This is especially true during ongoing litigations, for example, when the press criticizes a judge's ruling, and because of the confidentiality of an ongoing case, the judge cannot explain his or her actions personally. The press may react by questioning not only the actions of the judge but his or her apparent unwillingness to respond. The organized bar is also in a position to help the public better understand the proceedings and the reasoning behind judges' rulings in an effort to inspire public confidence and generate thoughtful public debate.

The bar also works hard to provide trained advocates or counsel in civil matters. Though the right to counsel has been established in criminal cases, it is not guaranteed in civil matters. Nevertheless, since the 1870s the ABA has been involved in efforts to provide free legal services for poor persons. The ABA actively campaigned for the formation of legal aid organizations throughout the nation because its members understand that, among other things, courts run more efficiently when litigants appear with a lawyer. It saves time, prevents error, and ensures that justice is done.

International Outreach

The ABA's efforts to improve access to justice do not end at U.S. borders. Through its international rule of law programs, the ABA engages in a myriad of projects that support efforts abroad to give citizens a voice and stake in the justice system in their respective nations. Throughout Central Europe, Eurasia, Africa, Asia, the Middle East, Latin America, and the Caribbean, ABA rule of law activities support local efforts to improve access to justice by developing legal aid and public defender programs, improving case administration, developing clinical legal education initiatives representing indigent clients, and implementing court outreach programs that educate the public about the judicial system, their rights, and responsibilities. For example:

• In Uzbekistan, ABA-sponsored public defender centers provide much-needed legal services to indigent criminal defendants.

• In countries such as Ukraine, Moldova, Azerbaijan, and Russia, the ABA trains and supports local lawyers to advance housing rights, address environmental degradation, and combat domestic violence.

• From Croatia and Romania to the Central Asian states of Uzbekistan, Kyrgyzstan, and Kazakhstan, the ABA has implemented programs that help courts explain their activities to the media and general public and to educate citizens about the justice system and their rights.

• In Rwanda, the ABA supports legal aid and access to justice for women and children living with HIV/AIDS.

• In Kenya, Tanzania, and Uganda, the ABA supports the enforcement of women's and children's rights to land and protection against sexual crimes.

• In China, the ABA has provided assistance that has supported the development of new regulations providing for greater access to clients by lawyers and pretrial disclosure of evidence between prosecution and defense. The ABA also has supported a Chinese legal aid center in developing and distributing a basic "know your rights" brochure to citizens who otherwise have little information about the legal system and their rights in it.

• In Cambodia, the ABA is working to increase the capacity of Khmer legal and human rights professionals to provide legal services to the oppressed and to bring "impact" litigation on behalf of the public.

• In Mexico, the ABA works closely with the supreme courts of more than 20 states to provide court-annexed mediation services in civil matters. The project serves as a catalyst for an unstoppable movement in Mexico to provide alternative dispute resolution methods to its citizens. In doing so, it has opened access to the courts to a disadvantaged class previously unable to afford lawyers or formal litigation.

• In Ecuador, the ABA is collaborating with government and nongovernmental authorities to curtail trafficking in persons, particularly women, children, and adolescents, for commercial sexual exploitation. Trafficked victims—typically poor women and children—are among the most vulnerable in society and seek refuge in the courts. The ABA, in conjunction with the Supreme Court of Ecuador and the National Council of the Judiciary, held a nationwide meeting to bring together the leading institutions working to combat trafficking in that country. There is now a call for a national plan to combat trafficking in persons.

Real and meaningful access to the courts is fundamental to the health and vitality of any democracy. It is the shield used by citizens to protect themselves against tyranny, abuses, and simple errors in judgment. Access to the courts is the lifeblood of the system because from it flow all other rights. It helps preserve order when conflict arises and keeps citizens actively participating in the proper use of their collective power.

Robert J. Grey, Jr., is president of the American Bar Association (ABA). A partner in Hunton & Williams law firm in Richmond, Virginia, Mr. Grey’s work focuses on administrative matters before state and federal agencies. He also has served as chair of the ABA House of Delegates and as a member of the Board of Governors.

The author wishes to acknowledge the contributions of the following ABA entities to this article: The Judicial Center, Consortium on Legal Services and the Public, The Commission on Domestic Violence, The Center on Children and the Law, The Latin America and Caribbean Law Initiative (ABA/LALIC), The Central European and Eurasian Law Initiative (ABA-CEELI), The Asia Law Initiative (ABA-Asia), and The Africa Law Initiative (ABA-Africa).

The opinions expressed in this article do not necessarily reflect the views or policies of the U.S. government.