Courts in the United States

Abstract

Abstract This chapter moves courts from a backdrop to center stage in analyses of transitional justice. Often forgotten is courts’ history as institutions of exclusion in which persons were far from welcome. Transnational political movements succeeded in rendering courts inclusive, seen as venues open to the marginalized seeking to obtain some of what transitional justice aims for—legitimatization of past wrongs and paths forward. Moreover, social movements revamped metrics of courts’ legitimacy: women and men of all colors could be litigants, lawyers, judges, juries, and employees, and constitutional interpretation and statutes obliged governments to subsidize subsets of litigants lacking resources. These ambitious political-sociological aspirations have, of course, never been complete. Moreover, the egalitarian and redistributive potential of courts has been undermined by efforts to push cases out and by some localities using courts as sources of revenue through imposing fines and fees. Privatizing processes through law include reconfiguring decision-making in courts to push for alternative non-public resolutions, and legal doctrines cutting off legal claims or outsourcing resolution to private sector providers empowered to render final decisions. In the United States, the aegis of courts is thus narrowing and opportunities for state-based public accounting eroding. Remedies associated with ordinary justice go by the boards, along with healing, apology, new forms of relief, and public narratives of past wrongdoings that are hallmarks of transitional justice’s goals.