Ketanji Brown

Kendra Thomas, Tribune News Service

Justice Ketanji Brown Jackson has made history as the first Black woman confirmed to the US Supreme Court. Both her confirmation hearings and her history as a judge underscore a larger issue: justice can’t exist without listening. The hearings brought the brokenness of the proceedings to light, with many speaking over her and failing to listen. This reflects, in particular, a profound misunderstanding of the procedures necessary to uphold the legitimacy of the judicial system. Listening is an underemphasised pillar of justice. While many people might think of the judicial system as a mechanism of distributive justice (allocating rewards and punishments appropriately), procedural justice (fair process and treatment) can serve as a stronger motivator of law-abiding behavior in its citizens.

In her opening speech, Jackson said her nearly 600 written legal decisions tend to be lengthy because she is committed to transparency. She stated she wants “each litigant to know that the judge in their case has heard them, whether or not their arguments prevail in court.” Yale law professor Tom Tyler has demonstrated through his scholarship that most people obey the law not because of perceived consequences, but because they believe the laws to be fair and legitimate.

When people feel fairly treated, through respectful processes and listening practices, they legitimise authorities. This legitimacy can happen even when people disagree with the distributive outcome as long as the process feels fair.  Transparency and voice are pillars of justice, and important predictors of legitimacy attributions in a wide range of studies.

The appointment of a justice who takes great care in providing transparency and procedural justice will strengthen the legitimacy of the courts at a time when the perception of the Supreme Court is at an all-time low. The appointment of a Black female, especially one who is committed to practices of transparency and procedural justice, has the potential to increase public legitimacy of the Supreme Court. A recent Gallup poll gave her the second highest approval rating, behind only Chief Justice John Roberts.

If the judicial sentence is distributed correctly, but if the process is botched, it will not feel like justice. And the perception of justice matters. Research shows that the perception of justice in one’s personal life drives motivation, well-being, feelings of safety and positive future orientation.

A disproportionate amount of hearing time was spent on browbeating the nominee over whether she is tough enough on crime. While this is arguably a flawed perspective shaded by race, it is also a short-term, fear-mongering focus that does not take into account the role that justice practices and adequate representation can play in legitimising the system itself. When a system is deemed legitimate and people feel heard, they are more likely to abide by a social contract. The role of procedural justice in shaping legitimacy is critical at this point in American history.

Fostering a just society also means creating systems that are considered legitimate by the people who live under them. There is a popular narrative that tough sentencing deters crime. In short, it absolutely does not, likely because criminals don’t weigh their future in the same way policy writers do. Legitimising legal authorities does improve compliance with the law. Thus, a system that practises listening increases people’s perception of the legitimacy of the system. Most importantly, it deters crime.

Through my years of studying justice perceptions in the family, school and legal authorities in Brazil, Kenya and the United States, I have come to understand justice as a form of capital that is not equally distributed. Justice capital can be increased by authorities who listen and grant citizens a voice. When judges institute practices of listening, they are increasing one’s individual access to justice and strengthening the legitimacy of democratic judicial institutions. Above all, listening grants humanity and a level of respect that will be the surest way to strengthen our justice system and ensure a stable, legitimate democracy because, as the old adage goes, people remember how they are treated. And they most certainly remember when they feel as if they have been heard.