Innovating from the Bench: Judges as Agents of Change

A Justice System Overdue for Innovation

The modern era is defined by an accelerating pace of change—change that is increasingly complex and multifaceted. This environment necessitates proactive and creative responses to emerging challenges and speaks to a shift in culture. Questioning the status quo and improving systems is expected. And yet the status quo persists in many aspects of the legal system—a status quo that is not meeting the needs of the people it’s intended to serve.

While recent years have brought innovation at a scale and pace that we have never seen before, we still have increased demand for low-cost legal assistance, inequities in access to justice, and deepening concerns about public trust and confidence. The nature of contemporary change highlights the critical need to transform and modernize our justice system. We need a system that is open, transparent, equitable, and accessible.

IAALS has conducted robust research across the legal system reflecting these challenges and the need to address them. Across the United States, people have unresolved and inadequately resolved justice problems. While the access to justice crisis is significant and pervasive, it rests most significantly on the shoulders of those of low income, people of color, and women.  

Americans’ experience with the legal system has resulted in lower levels of public trust and confidence in our judiciary.  More people today view the courts as not delivering equal access to justice than believe the courts are meeting this goal. In fact, courts rank among the lowest institutions in terms of public perceptions regarding respect and the ability to express oneself.

The last few years have highlighted this critical need to improve our justice system. We have a long way to go to meet the needs of system users. It is clearer than ever that we need sweeping transformation from the status quo. In order to bring about that kind of transformation, we need strong leaders who will not only respond to existing challenges but also design a better system that anticipates and prepares for future needs.

The Bench as a Platform for Reform

Sustainable innovation requires broad collaboration by diverse stakeholders and justice system users. Among these stakeholders, judges hold a uniquely powerful position that makes strong judicial leadership a core component of meaningful innovation.

Judges have a front row seat to problems and challenges

In order to make any meaningful strides in access to justice and public trust and confidence, changes must not only have judicial buy-in but must also feature input and leadership from those most intimately familiar with the way the system works. Judges are on the front lines, witnessing firsthand the challenges faced by everyday people entangled in the legal system. They see the bottlenecks, inefficiencies, and disparities that can turn what should be a simple dispute into a life-altering and all-consuming ordeal. They have deep knowledge of the legal system’s nuances, limitations, and complexities. This expertise makes them well-positioned to bring about reform.

Judges have opportunity to enact impactful change

Because of their expertise, position, and influence, judges are in a prime position to bring about practical, tangible improvements that directly benefit the public. They can serve as catalysts for innovation by championing new ideas, testing pilot programs, and sharing insights with other system actors. Some judges refrain from reform efforts out of fear that such activity is ethically prohibited. Others feel it is an implicit part of the job. Former Chief Justice Bridget Mary McCormack stated, “The ethical rules governing judges do not preclude such advocacy. To the contrary, ethical rules and their accompanying moral concerns require it.”  In order for Americans to trust the justice system, they must be able to trust that those at the helm are exercising leadership to drive change and make it work better for everyone.

A Judge’s Toolkit for Change

Innovative judges recognize the evolving and complex landscape of the justice system. They actively identify areas where processes or structures need modernization to remain effective. These leaders champion change by involving stakeholders, exploring solutions, and securing resources. Most importantly, they inspire others to embrace change and collaborate on better solutions. There are many conceptions of and frameworks for change. There are a few things they have in common:

Define the problem

As stated above, judges are well suited to understand the problems with the legal system given their proximity to users and their intricate knowledge of the system. That said, defining the problem should be a collaborative effort that incorporates voices of users most impacted by the system’s flaws and limitations.

Question the status quo

Judicial leadership extends beyond the courtroom. It involves taking a systems-level perspective and challenging the status quo about how justice is delivered to create a willingness to change. It means asking tough questions about the underlying causes of problems and seeking innovative solutions.

Embrace stakeholders and build coalitions

Facilitating change requires identifying and mapping the universe of potential stakeholders and building a coalition of key entities. Potential stakeholders include people who can exert influence or pressure on the change, people responsible for creating the change, people who can choose to use or not use the results of the change, and people who will ultimately benefit from the work of the change.

In addition to mapping stakeholders, it is essential to listen to them. Courts are one of the institutions rated lowest in giving stakeholders a voice, but ensuring participants feel seen and heard is essential to bringing about sustainable change.

Overcome institutional inertia

Institutional inertia toward the status quo can be powerful. Organizational resistance is exemplified when entities are slow to adopt emerging innovations or shift their focus to new user preferences. Status quo bias, fear of the unknown, silos and bureaucracy, and lack of visionary leadership all contribute to organizational resistance and create obstacles to change.

Navigate ambiguity and uncertainty

Successful judicial leaders must be able to lead through ambiguity and constant change. Leaders need to be adaptable, strategic, and resilient. They must be able to counter volatility with a clear vision, meet uncertainty with understanding, respond to complexity with clarity, and confront ambiguity with adaptability.

Design a vision

The justice system is the product of evolution over time rather than deliberate design, resulting in inefficient and antiquated procedures. If we were to design a justice system from scratch today, it is unlikely any of us would choose the system we now have in place. Change is best accomplished through intentional design rather than accident or circumstance. Change makers need to not just respond to problems but also have a vision for a well-functioning system designed to meet users’ needs.

Foster resilience

Resilient organizations are open to change, encouraging exploration of novel ideas and operating models. They foster the development of skills and knowledge that help members innovate and adapt in often ambiguous circumstances. In addition, they adopt future-focused strategies to anticipate disruptions before they happen, enacting preventative measures to limit the impact if they occur.

Advancing Innovation: A National Summit on Judicial Leadership

Judicial leaders cannot and should not do this work in isolation. They need support, tools, and collaboration from colleagues. For this reason, IAALS, together with the Berkeley Judicial Institute, is hosting Advancing Innovation: A National Summit on Judicial Leadership next week. This event will bring together judicial leaders from state and federal courts across the country to explore practical strategies for driving innovation to make the legal system work better for everyone. The goals of the summit are to highlight opportunities and need for leadership and reform, empower robust and resilient judicial leaders who can spearhead critical reforms, create opportunities for collaborative problem-solving and community-building among judicial leaders, and identify and provide a framework for core competencies of judicial leadership. We look forward to the opportunity to support strong judicial leaders in their efforts to innovate toward a justice system that works well for everyone.