A fairer court system in Minnesota? Yes, with miles to go

Twenty-two years ago this summer, a torch of responsibility at the Minnesota Supreme Court passed from soon-to-retire Associate Justice Rosalie Wahl to newbie Associate Justice Alan Page. As head of a groundbreaking Task Force on Racial Bias in the Judicial System, Wahl had helped shape scores of recommendations she hoped would lead to a fairer judicial system. Page was assigned to head the committee that would implement them.

My mental image of Wahl, a grandmotherly sort who had been the Minnesota high court's first female member, bustling into the chambers of the towering NFL Hall of Famer to plop a fat folder on his desk, is "more or less accurate," Page recently recalled with a laugh.

Page is now the soon-to-retire justice; his last day on the state's high court will be Aug. 31. Perhaps more than any other of Wahl's successors, he channeled her jurisprudence of inclusivity as his own.

The boxes next to items on the "to-do" list Wahl handed Page have all been checked. As a result, more people of color hold positions at every level of the judicial branch; more race-based data about court decisions are collected in more places, and more judicial personnel have been trained to understand racial and cultural differences.

In 2010, Page's implementation committee was melded into a similar one shepherding another of Wahl's legacies, the Gender Fairness Task Force of 1989. That blended panel's fat folder is now in the hands of Associate Justice Wilhelmina Wright, herself potentially a short-timer as a presidential nominee to a U.S. District Court judgeship.

Mission accomplished, Justice Page?

He sighed, then spoke slowly in response: "We worked very diligently, very hard and, I think, successfully, marching through each one of those recommendations and taking some action. … If all we had to do was check off the boxes, we could be done with this. But checking those boxes doesn't solve the problems.

In this #BlackLivesMatter summer, it's hard to disagree. For those old enough to remember the civil-rights movement of the 1950s and '60s, this year's events in places like Ferguson, Mo., and Charleston, S.C., seem like a movie seen before — one many Americans naively thought had produced a happier ending.

If anything, the civil-rights movement sequel that's playing now is more focused on the criminal-­justice system than was the 20th-century version. Policing practices and the court responses to them are filling streets with protesters, much as concern about discrimination in voting rights, housing and employment once did.

I won't accuse the late Justice Wahl of naiveté. She hesitated before taking the Racial Bias Task Force reins in 1990, knowing she was being asked to move a mountain. But Wahl was an optimist by gritty choice. She hoped that if Minnesotans had more race-specific information about the work of the criminal system and family courts, they would see obvious flaws and mend them. And if more court personnel were people of color, the decisions those courts made would be more sensitive to the reality of nonwhite life in America.

The social movements of the 20th century were given to that kind of wishful thinking. If only women or people of color could populate more positions of power, the thinking went, the segments of society they represent would benefit.

Gender and racial integration of cops and courts is a fine thing. But it's proven to be a weak lever for change. Minnesota's incarceration stats tell a dismaying story: In 1990, people of color comprised 6 percent of Minnesota's total population and 45 percent of its imprisoned population. In 2010, the comparable figures were 17 percent and 53 percent, according to the Prison Population Initiative.

A sense that the court's quest for racial fairness is unfinished seemed to weigh on Page as, having reached the mandatory retirement age of 70, he is leaving a job he has performed with distinction. He allowed that he'd hoped to be on the bench to rule on a big, breakthrough lawsuit that would address racial disparities in the justice system. No such case has come.

"It's hard to say that there's been something wrong with the end result of criminal cases unless somebody presents a challenge in a case," he said. "Then at least we'd get a chance to look at it closely and make a decision. It strikes me that real change will come when this court has cases in front of it which directly deal with the issues that create these disparities in the first place. We haven't had those cases."

The data about court outcomes that such a lawsuit would require is now at hand, thanks to the work of Wahl's task force and Page's implementation committee. "All that data we've been collecting …" Page said, his voice trailing off. "I suppose it takes lots of resources to sort it out and use it to litigate change."

It would also take a serious appellate-­level litigator. Someone who's passionate about racial fairness. Someone with the time and talent for a far-reaching case. Someone who knows how to force big questions onto the agenda of a high court that's inclined to rule on any question as narrowly as possible.

Alan Page may be leaving the Minnesota Supreme Court. But that does not mean that his quest for justice is over.