AMERICANS LOVE FINAL endings – in sports, love stories and trials – so I am not surprised by the popularity of shows like "Judge Judy" in which conflicts are resolved in 15-minute cycles. However, I am baffled that court decisions that truly matter in viewers’ lives, like those that protect millions of workers from discrimination and workplace hazards – rarely reach public consciousness. Whether the reason is lack of media coverage or public indifference, the result has important implications for our democracy.

When citizens fail to appreciate the connections between the legal system and the common good, or to understand the impact of legal decisions on public policy, then civic participation is seriously weakened.

Those who believe that "litigiousness" is a threat to, rather than a strength of, American democracy are less inclined to engage in public discourse, less disposed to seek legal remedies to which they are entitled, and ultimately less likely to vote.

Despite the widespread appeal of movies in which David is the hero, Goliath continues to receive media sympathy. For example, an AP story about asbestos-related deaths and illnesses ran in the Bozeman Daily Chronicle last year under the headline, "Asbestos suits put companies on defensive." The story began, "An avalanche of asbestos lawsuits" are "threatening companies" by forcing them to seek bankruptcy protection "as a result of mounting exposure claims and hefty settlements." The public policy implications were buried near the end of the article: "Congress has never passed asbestos-related legislation over the past three decades." While the coverage was nominally balanced, the overall point was that litigation – not greed, nor callous disregard for public health, nor failure to comply with environmental laws – caused bankruptcies.

Contrary to what we learned in civics about the three branches of government, the courts are frequently portrayed as interlopers in the public square. Any high-school student will tell you "the legislative branch makes the laws, the administrative branch enforces the laws, and the judicial branch interprets the laws." Nevertheless, courts are frequently characterized as a mother-in-law trying to interfere in a contentious marriage between the president and Congress. A week after the 2000 election, the Wall Street Journal ran a front-page story under the headline, "When All Else Fails, The American Way is to File a Lawsuit." The article lamented that, "Litigation has become the preferred route for resolving many political and social conflicts that once would have been handled in the political arena or in the marketplace." The implication was that there are only two bona fide public forums, one political and the other economic. Never mind that the administrative and legislative branches have extended their reach into all forms of public life from consumer protection to affirmative action. There seems to be an expectation that the courts will confine their influence solely to the parties in front of the judge or jury. If the authority of the courts were that limited, then they might as well be in outer space.

Activist citizens – not judges – are responsible for grasping the power of the courts. Professor Michael Schudson, who chronicled the history of citizenship in his book "The Good Citizen," identified a new cadre of citizens who, due to their "rights-consciousness," have "added the courtroom to the voting booth as a locus of citizen participation." From civil rights cases to litigation against handgun manufacturers, citizens now have "political ties not only to elected public officials in legislatures but also to attorneys in courtrooms and organized interest groups that represent them to administrative agencies."

But never mind the reality. According to an article by Adam Cohen in Time Magazine July 17, 2000, critics have dubbed cases like those against Big Tobacco "law by trial lawyer," because they believe "it’s an undemocratic way for a nation to decide its approach to controversial issues like handgun and tobacco regulation."

The public is receptive to court-bashing because of misconceptions about how the legal process operates. Litigation is characterized as a process for resolving disputes between two parties, one a winner and the other a loser. Little or nothing is discussed about the implications of each decision for future disputants, much less public policy. In short, basic legal concepts that are essential to our democratic system are missing from public awareness and, apparently, civic education.

In "The Life of the Law: The People and The Cases that have Shaped Our Society from King Alfred to Rodney King," Arthur Knight writes, "The power in a named idea – a legal concept – can be greater than the specific judgments of a thousand courts." Of the 20 or so concepts he describes, the absence of two of them from public awareness, "binding precedent" and "judicial review," seems to contribute to the notion that the courts are not entitled to equal space in the public square with the other two branches of government. He traces the genesis of "precedent" to the need for consistency in judicial decision-making, "the most important idea ever introduced into our law." In a world with more intelligent media coverage and stronger civic education, the public could appreciate that, when precedent is set – whether on auto safety or sexual harassment in the workplace – public attitudes shift, Congress responds, and whole sectors of society change.

With regard to judicial review, Knight points out that, beginning in the 1920s, "the Supreme Court used the power of judicial review to catapult itself into the center of American political life. From that day to this scarcely an important issue of governmental power has arisen of which the Court has not been the final arbitrator."

Unfortunately, when the courts overturn laws, there are frequently accusations they are making laws instead of protecting constitutional ones. Many issues, from abortion to Internet filtering, are finding their way not just "up and down the courts" as the phrase goes, but back-and-forth between different branches of government. When I taught a class of seventh graders about the First Amendment, we discussed whether flag burning should be permissible speech. I explained that Congress attempted to ban flag desecration by statute, but the Supreme Court struck down the law because it violated the right to free speech. Nevertheless, Congress could still attempt to amend the Constitution to prohibit flag desecration if it had a public mandate to do so. Students were able to see that rights and responsibilities expand and contract through a deliberative process that includes all three branches of government.

Final endings like those in the movies are not as prevalent in a democracy as in Hollywood. Public policy is continuously evolving, not stagnating. New policies are often created in response to court decisions; and, frequently, judicial decisions reflect changes in public attitudes. Those of us in the legal profession need to respond to accusations that the courts have overstepped boundaries arbitrarily drawn to minimize their credibility in the public square.

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