Multiple stories circulate about the origins of the statue given to the City of Valparaiso in Chile by a French donor in 1876, some cynical and some more official. But whatever the origin, the iconography is strong.
The scales of justice are folded, unused, and a bit disordered, with one pan spilling out. They hang at the side of a hip-slung Justitia, with hand on hip, perhaps a bit impatient. Her eyes are open, without blindfolds. It is the facial expression, however, I find most interesting: harsh, arrogant, suspicious, eyes narrowed and looking down.
Is this the iconography that is coming to represent contemporary US courts? Are some of our justices not blindfolded to who comes before them, and look down with suspicion on classes of people, even denying them entry to their tribunals? Are our scales of justice relaxed, disordered, and sloppy? Is justice spilling out, unmeasured? Does the perception of a less than rigorous attitude keep some from even attempting to enter the courts?
I am not a legal scholar and I cannot evaluate the realities of the court, but I do follow the news. I see that justices at all levels of the federal and local courts are reported to have records of partisanship, of favoring some groups, of tipping the scales, of arrogance, of relaxed attitudes towards truth and law, of compromised character, and of lapses of judgment or worse. These repeated stories, sometimes at the highest levels, erode civil trust in the courts.
Most on the left and the right claim that the courts must be held in esteem for legitimacy of governance. Some blame the press for making up delegitimating stories to sabotage candidates, saying it is the stories that are illegitimate and the press is the corrupt institution. Or some may blame the press for raising stories that are factual, but tell of bygones that need to be forgotten and hidden from the public to maintain a public fiction of probity. But pushing through candidates about which serious and credible questions have been raised does nothing to maintain the serious ethos of the courts.
Others point to the nomination of faulted candidates, noting that both conservative and liberal judges’ overt faults do get strong approval with at most some controversy over judicial opinions. They rightly see lying, misrepresentation, hiding of histories of favoritism and partisanship, lack of transparency, or even unresolved controversies that leave candidates tainted as damaging to the legitimacy of the courts. The truthfulness and honesty of judges must be above reproach for their judgments to stand over time.
Even more insidious, however, is the possibility that some may not be interested in maintaining the legitimacy of the courts. Rather they would have us perceive judicial rulings are all about politics and power, just as in the other more overtly political branches of government. Pushing through questionable candidates may be just what those advocates of pure power of winning need to delegitimate belief in the just evaluation of laws and their administration. After all, as the unreality show President has said of a credible woman who raised credible concerns about a Supreme Court candidate: “I’m not gonna get into it because we won. It doesn’t matter. We won.”
Then the hard won history of the advancement of rights gained through the courts would harbor no particular respect and can be blown away with the shifting winds of power. And at the steps of the courthouse Justitia, at her ease, can stare scornfully with hand on hip at those out of power, saying you have no right to enter. With her arrogant eyes open to the powerful, she can wink and nod them in. If we become convinced that the courts can be no more than that, who can argue that things can be otherwise?
Whichever story you believe about our current selection process for justices, the iconography is as strong as of the statue before the courthouse in Valparaiso.