Trump's Budget Proposes Elimination of Civil Legal Aid By Eric van der Vort

The United States is a nation of laws. Our constitutional tradition enshrines fundamental legal rights in text and in statute. Yet a tension exists: these rights exist formally but are hard to access without resources or legal representation.

For example, we guarantee legal counsel in most criminal cases but the level and quality of representation varies significantly. There is even less formal support for litigants in civil court. This is a critical imbalance in a system that promises "equal justice under law." Criminal justice is a common topic, but civil justice remains understudied. Political scientists interested in courts, law, and justice may wish to turn their attention to this civil legal gap.

The right to seek justice is a central part of modern citizenship. T.H. Marshall includes “the right to justice” as part of basic civil rights. Expanding both criminal and civil legal aid is vital to access justice.

It is also hard to do. In 1963, the Supreme Court ruled unanimously in Gideon v. Wainwright that states were required to provide counsel to defendants unable to fund their own representation, leading to an expansion of the public defender system for criminal trials. Public defenders are notoriously underfunded compared to prosecutors.

Even with the constrained resources of public defense, litigants in the civil courts are not as fortunate. Civil legal aid is a political football. The Trump administration recently proposed eliminating civil aid budgets. The funding pressures that face state courts and nonprofits threaten to undermine civil society’s efforts to provide civil legal aid.

There is a long history of the federal government trying to address the civil aid gap. In 1965, the federal government began funding civil legal services programs nationwide. This funding was formalized in 1974 with the establishment of the Legal Services Corporation (LSC), a federally funded nonprofit tasked with funding civil legal aid.

Civil society and state courts are also working to expand assistance by establishing nonprofits, education centers, and self-representation advice. These programs fill some gaps, but many are relatively young and experimental.

Reforms such as centralizing information do not address other barriers such as filing fees or accessibility for disabled persons or ESL speakers. There remains a need for more innovation and research on how best to assist civil court litigants.

How legislators and court systems promote or prohibit justice-enabling policies is vitally important. Civil courts are a venue through which citizens pursue substantive rights when no other authority exists. Their ability to do so equally and fairly taps into questions of politics and justice.

The level of variation in policies among state court systems in terms of what policies allow easier access to justice for some groups (e.g. the indigent, the disabled, ESL speakers, self-represented litigants) versus others presents opportunities for cross-state comparison. For example, some states perform extremely well on many measures of access to justice. Colorado performs well on access to justice for disabled persons.

Why? What politics combined to create these policies, and how can they diffuse to other states? Answers to these sorts of questions would help not only to identify where such policies exist, but also how to overcome barriers to their replication elsewhere.

Eric van der Vort is a Ph.D. candidate in Political Science at Syracuse University.