Appellate Advocacy Blog

Editor: Tessa L. Dysart
The University of Arizona
James E. Rogers College of Law

Monday, January 24, 2022

If it is broke

Sometimes you don’t realize how important something is until it is broken.  This has been very true in my life as I have learned to live with a broken finger on my dominant hand.  As it turns out, the only thing that is easier to do with a broken middle finger is flip someone off.  Everything else is harder. As I was writhing in agony on the floor of my garage after accidently closing my finger in the door, I anticipated some of the challenges I would face, like typing and handwriting. What I didn’t fully appreciate was how hard things like using scissors, vacuuming with the stick vacuum, and carrying grocery bags would be.

Similarly, I think that many of us failed to realize how important general civic knowledge was until it became, well, broken.  Kari C. Kelso, the public education and community outreach administrator for the Ninth Circuit, and Prof. J. Clark Kelso discuss this in their recent article Civic Education and Civil Discourse: A Role for Courts, Judges, and Lawyers, which was published in the most recent issue of The Journal of Appellate Practice and Process.

The article starts with setting up the problem:

A 2016 survey by the Annenberg Public Policy Center revealed that “[o]nly a quarter of Americans can name all three branches of government, the poorest showing on that question in a half-dozen years. . . . Nearly a third of Americans cannot name any of the three branches of government.” Commenting on this survey, Kathleen Hall Jamieson, director of the Annenberg Public Policy Center, observed that “[t]hose unfamiliar with our three branches of government can’t understand the importance of checks and balances and an independent judiciary. . . . Lack of basic civics knowledge is worrisome and an argument for an increased focus on civics education in the schools.”

Kelso and Kelso attribute the “virtual collapse in practices of civil discourse over the last several decades” to the “overall reduction in the public’s knowledge and understanding of basic principles of government and democracy.” In their article, they envision a role of judges, lawyers, courts, and educators (both law schools and K-12 schools) in helping fix the broken system of civic education.  In the article, they focus on four key democratic principles, taken from Professor Larry Diamond. That list includes:

  • Regular, free, and fair elections to select the government’s leaders;
  • Active participation by a substantial portion of the population;
  • Protection of basic human and civil rights; and
  • Respect for the rule of law, fairly and equally applied to all.

For democracy to work, “over-whelming majorities understand these essential elements and trust that these elements accurately describe how democracy is practiced in the United States.” As the Kelsos point out in their article, and as anyone who has watched the news last week knows, that isn’t the case. The lack of trust and understanding have certainly contributed to the lack of civil discourse. As the Kelsos explain:

According to the Pew Research Center’s 2018 survey, “[f]ew people say tone of political debate is ‘respectful.’ Just a quarter of Americans say ‘the tone of debate among political leaders is respectful’ is a statement that describes the country well.” The tone of political discourse is important for many reasons, but most particularly because a civil, respectful tone promotes greater understanding and trust, while an uncivil, disrespectful tone promotes misunderstandings and division.

What can be done? Well, as it turns out, Chief Justice John G. Roberts has noted at least two ways, which the Kelsos discuss in their article:

In his 2019 Year-End Annual Report, Chief Justice Roberts identified two distinct ways in which courts can contribute to improving the public’s understanding and trust in democratic principles and civil discourse. First, as he explained, “[b]y virtue of their judicial responsibilities, judges are necessarily engaged in civic education.” Second, courts have directly contributed to civics education by developing curricular materials for students, establishing judicial learning centers which serve as community forums for civic education, developing best practices for civic education, and coordinating their efforts with other organizations.

I have seen some of these efforts through our local Federal District Court and the local Federal Bar Association chapter. For any court wanting to adopt a more active role in improving civics education and civil discourse, the Kelsos’ article serves as a model and a call to action. It is one that I hope more courts take.

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