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Fair Courts E-Lert: Brennan Center Releases Analysis of Legislative Assaults on State Courts for 2021

This week’s Fair Courts E-Lert features a new Brennan Center analysis of legislative assaults on state courts for 2021, new Brennan Center principles for remote court proceedings, and more.

Last Updated: May 21, 2021
Published: July 15, 2021

Brennan Center Releases Analysis of Legislative Assaults on State Courts for 2021

On May 19, the Brennan Center released a new analysis of legislation introduced this year in state legislatures across the country that threaten the independence of state courts, especially around election-related cases.

According to the analysis, at least 93 bills have been introduced in 26 states as of May 14 that would either politicize or undermine the role of state courts. At least ten of these bills have been signed into law.

In a new trend in 2021, lawmakers in at least eight states are considering bills that specifically target courts or individual judges for rulings related to the 2020 election. Broader court bills in 21 states would also impact election cases (and other types of litigation) by changing how judges are chosen, which courts hear cases against the government, or how judicial decisions get enforced.

As noted by the Brennan Center’s Patrick Berry and Alicia Bannon in the Washington Post, “[t]hese bills mean that voters, frequently Black and Latino, are being hit with a one-two punch: efforts that attempt to suppress their votes while also suppressing their ability to fight back using the legal system.”

Brennan Center Offers Principles for Remote Court Proceedings

In an article in the Northwestern University Law Review, the Brennan Center’s Alicia Bannon and Douglas Keith analyze courts’ use of virtual proceedings amid Covid-19 and the lessons learned over the past year.

In the essay, “Remote Court: Principles for Virtual Proceedings During the COVID-19 Pandemic and Beyond,” the authors note the advantages to using remote technologies to conduct court proceedings, including time savings and greater court access for those who have the technology necessary to participate. But they also note that research suggests remote courts have significant shortcomings for some litigants and defendants, including a weakened attorney-client relationship, obstacles to submitting and reviewing documentary evidence, and unique disadvantages for self-represented litigants on the wrong side of the digital divide.

Building off of the Brennan Center’s work analyzing how video proceedings impact litigants’ access to justice, Bannon and Keith expand on their earlier set of principles courts should adhere to going forward when using remote technology. These principles include engaging a diverse array of stakeholders in decision-making, tailoring the plans for using remote tools to each type of proceeding, and bolstering the attorney-client relationship, among others.

Analysis Finds Persistent Gender Gap Among Attorneys Who Argue Before SCOTUS

A new Bloomberg Law analysis finds that there is a significant gender gap among attorneys who argue before the U.S. Supreme Court.

During the current term from October 2020 – May 2021, the analysis found that 125 male attorneys argued before the Court (including five men who argued 13 percent of all cases this term) compared to 28 women. In all, women argued only 18 percent of cases.

According to Bloomberg, both private law firms and the government contribute to this discrepancy. Law firms selected 61 men to argue before the Court but only 10 women, while only 16 female government attorneys argued as compared to 49 men.

This also means that changes in law firm and government behavior can reduce the gap. Lisa Blatt, a partner at Williams & Connolly LLP who has argued more cases before SCOTUS than any other woman (41), pushed for two of her female colleagues, Amy Saharia and Sarah Harris, to have the opportunity to argue before the Court this term. As a result, Williams & Connolly had four cases before the Court this year, all argued by women.