Courting Danger

When courts are asked to cure the ills of the political process, they are almost guaranteed to fail. When we ask them to dispense not only individual justice but social justice as well, we court bitter disappointment. Judges and juries are no substitutes for responsible politicians; to expect them to be is to invite injustice in the particular case and disaster in the public reaction to it.

That is what is wrong with Rodney G. King civil-rights trial: The court cannotpossibly solve the larger problems it’s being asked to address; and the effort to do so is as likely to exacerbate those problems as it is to resolve them. This is also what has been wrong for a decade in abortion-rights litigation. In the wake of the murder of gynecologist David Gunn in Florida, there are renewed efforts to expand the power of federal courts to protect abortion clinics. Certainly, the federal courts may usefully supplement state courts in assuring safe access to clinics. But they can no more conclusively solve the abortion problem in this country than they can deal with the forces that make the King civil-rights trial so explosive.

The retrial of the four Los Angeles Police Department officers is, in the last analysis, less about what happened on a given night in March, 1991, than what has happened in our city, and across the country, for decades: growing tensions between the police and the minority community, escalating violence on all sides, the breakdown of social institutions, poverty and despair in the inner cities. After last year’s riots, which were also less about King than about everything else gone wrong in our cities, the easiest response for federal officials was to again ignore the other problems and promise a new prosecution. The courts would step in where the political process had failed.

That is not to say that the four officers did not violate King’s civil rights. They may well have, and if they did, they should be punished for it. But punishing them, however deserved, will not address the underlying issues threatening our community; at best, it’s a symbolic salve for the deeper wounds. And if the officers are acquitted, there is the real danger that the verdict will be taken as the vindication of everything the prosecutors, in bringing the case, sought to deny: as proof that the justice system is stacked, as affirmation of hopelessness and despair; as another wedge in a divided community. When a case is about more than individual conduct or misconduct, its verdict inevitably has larger consequences.

Juries cannot help but notice this and be affected by it; and the conflict between the judge’s charge to the jury, and the community’s, may produce injustice in the individual case. There is the danger that an innocent man can be convicted because the larger message is the one jurors want to send, or that a guilty man goes free to send the opposite message about the system.

If the juries in the King and Reginald O. Denny case both hang and cannot reach a decision, as some people expect, it may not be just because the rules of proof are stringent or the issues complicated: Damian (Football) Williams, accused of beating truck driver Denny, may ultimately be as unconvictable as the officers who beat King, because jurors in all these trials will also be evaluating symbolism and making policy as much as judging individual guilt or innocence. How can they avoid it, given what the rest of society has invested in these cases?

The divisions that are supposed to be worked out, and worked through, at the ballot box, in the City Council, in the mayor’s office, in the Capitol are instead brought into the jury room. It is not the way criminal cases are supposed to be decided.

There is a noble tradition of courts stepping in where the other branches of government have failed. Problems not dealt with elsewhere have, at least in recent years, exploded in our courts. It was the courts, after all, that ordered an end to official segregation, because even the more enlightened political leadership was too weak and too cowardly to take on bigotry. And it has been the courts, for the last decade, that protected the rights of women to have an abortion while most politicians paid lip service to one side or another and hoped the issue would simply go away. Most of these cases, of course, have been civil trials defining public rights, rather than criminal trials adjudicating individual guilt. Arguably, there’s more room for politics in such a public civil suit. But even there, the courts have faced limits.

The abortion issue is an instructive lesson in these limits. As long as the courts are protecting abortion rights, politicians have found it easier to avoid the issue and let the courts--and the doctors and the women--take the heat. Pro-choice legislators could mouth support for the Supreme Court decision, and avoid the need to build political support to protect abortion rights through affirmative legislation or community action. Presidents who were anti-abortion rights could play with fire--offering annual taped encouragement to the activists at their conventions, winking at the radicals who blocked access to clinics--secure in the knowledge that the courts, in protecting abortion rights, would also protect them from the consequences of their actions or even from facing the issue electorally.

In the meantime, in two-thirds of America’s counties, there are no doctors willing to perform abortions, and few politicians willing to stand up and protest, or to unite the community to protect the doctor. Many medical schools have simply stopped training doctors to perform abortions, many public hospitals have decided it isn’t worth the aggravation and all but the most privileged women in our society have discovered that the legal right to an abortion means nothing if there’s no doctor willing to perform it.

Pro-choice advocates have continued to win major court battles--last year, the Supreme Court once again reaffirmed Roe vs. Wade, albeit with some limits--but even activist courts cannot ensure the rights of women when politicians are unwilling to risk their political capital in the effort.

In the aftermath of Gunn’s murder, and of the Supreme Court’s decision last year leaving the state rather than federal courts as the prime protectors of the clinics, Congress may well pass legislation expanding federal court jurisdiction in this area. Consensus is easier to achieve on the question of court jurisdiction than on the much more important issues, raised by the proposed Freedom of Choice Act, of exactly how broad abortion rights should be in our country, and how much freedom the states should have to limit them. Those are the questions Congress continues to leave to the courts. While there is certainly nothing wrong with giving federal courts the power to protect the clinics, expanded federal jurisdiction is no substitute for political responsibility.

The abortion debate in America is not simply about what the law is or should be: It is also a debate about the changing role of women, the new definitions of family, the scope of individual privacy and the responsibilities of institutions from the family to the school to the government. It is about the limits of acceptable conduct in a civilized society. It is about whether we will blink at the terrorizing of doctors, as we have blinked at police beatings of black teen-agers.

These are issues that can and should be addressed in the political process, just as the issues of race and injustice and despair that underlie the King trial must be addressed by politicians. To expect the courts to do the business of politics is to put judges and juries on the hook that politicians should be hanging from.