PRESIDENT TRUMP HAS described the late Justice Antonin Scalia as the model of what a Supreme Court justice should be. On the 40th anniversary of the Legal Services Corporation, in September 2014, Scalia said that the “mission of LSC is to provide equal access to the system of justice in our nation and to provide high-quality legal assistance to those who would otherwise be unable to afford adequate legal counsel.” He asked rhetorically, “Can there be justice if it is not equal, can there be a just society when some do not have justice?” And he answered, “Equality, equal treatment is perhaps the most fundamental element of justice. . . . And in today’s law-ridden society, denial of access to professional legal assistance is denial of equal justice.”
Scalia noted that the LSC “pursues the most fundamental of American ideals and it pursues equal justice in those areas of life most important to the lives of our citizens. The bulk of its cases, if you look at their annual report, involve domestic violence, real estate foreclosures and evictions, child custody, and denial of veterans’ benefits, unemployment compensation, and other governmental benefits. More than a third of the cases closed by corporation grantees in 2013 involved family law and more than a quarter of them housing.”
Trump has forsaken Scalia’s commitment to equal justice under the law by proposing a budget for fiscal year 2018 that calls for the elimination of the LSC. In place of the $385 million appropriated to the LSC in fiscal year 2017, from which Massachusetts legal service organizations received approximately $5.1 million, the president proposes an appropriation of $33 million, the amount his budget office determines is necessary to shut down LSC’s operations permanently, close its doors, and shut off its lights.
His budget office proclaims that the LSC’s “proposed elimination will encourage nonprofit organizations, businesses, law firms, and religious institutions to develop new models for providing legal aid, such as pro bono work, law school clinics, and innovative technologies.” Massachusetts already has thousands of attorneys providing pro bono legal assistance and active law school clinics at each of our nine law schools, and has been a leader in developing innovative technologies to assist in the provision of legal assistance. And yet, even with the $18 million our state Legislature appropriated for legal aid for the poor last fiscal year, the need for legal assistance is so great that our legal service organizations turn away approximately 60 percent of those eligible for assistance, an estimated 57,000 of our residents last year, all of whom live in households with annual incomes at or below 125 percent of the federal poverty line.
Without LSC, the number of eligible residents turned away is sure to soar. The consequence will be that even more poor litigants will have no choice but to attempt to represent themselves in court and administrative agencies when they are faced with eviction, the loss of custody of a child, domestic violence by an abusive partner, and the denial of veteran’s or health benefits. Regardless of whether they are intellectually challenged, mentally ill, unable to speak or understand English, or involved in a case with complex legal and factual issues, they will be left to seek justice on their own, without the advice or assistance of counsel. And our courts will have no choice but to attempt to provide justice in an adversary system where one or both sides may have no clue how to advocate.
Justice Scalia and the Supreme Court understood — as do the Massachusetts Supreme Judicial Court, Appeals Court, and Trial Court, the Conference of Chief Justices of the National Conference of State Courts, and judges and attorneys throughout the country, regardless of party affiliation — that the continued existence of LSC at an appropriate level of funding is essential if we are to fulfill our commitment to equal justice under law to our poorest and most vulnerable citizens. If Congress were to agree to the president’s call for the elimination of the LSC, it might as well also amend our Pledge of Allegiance to omit the phrase “with liberty and justice for all,” to spare our children from reciting a pledge that our federal government will have abandoned.
Ralph D. Gants is the chief justice of the Supreme Judicial Court of Massachusetts.