It is now trite to point out that our government is in a state of partisan grid-lock. About the only things the two parties can agree upon is the need to raise enormous amounts of cash for campaigning. So when legislatures do act, financial clout usually has a large role in what they say.
But another part of our government never suffers from gridlock; if you file a complaint in a court, it must act, even if only to dismiss the case as wrong-headed. Another way that courts differ from legislatures is that they are more fact-oriented in their approach. They decide one dispute based upon one set of facts. And while it would be naive to think that courts are not influenced by political considerations, they are more likely to look at the facts than decide the case by a partisan vote.
That means that plaintiffs who have a complaint can demand that defendants respond to it in a forum where, unlike the legislatures, money has no direct role. Because of these factors- the mandate to decide, the focus on facts, the lack of partisan voting, and big money’s impotence, individuals and groups who have little chance in the legislature sometimes win in court.
Below are stories about two recent examples of such success. The two cases discussed in the links below are different in many ways. One involves women from foreign countries asking for political asylum before an administrative court. The other is a lawsuit in federal court filed by mentally ill citizens.
But I think the features they have in common are more striking. Both groups are without political clout in the legislatures and both were represented by talented lawyers. The second factor is important to remember. The courts are only the people’s forum if every potential plaintiff has access to competent legal representation. Courts only speak when clients have lawyers to demand a response..