The “Rule of Law” sounds like an arcane concept. At its heart, it is simply the idea that our nation is ruled by laws which apply to everyone equally. President John Adams famously described “a government of laws, not men.” It is such a fundamental part of our system we, unfortunately, do not spend much time thinking about it. The side effect of this lack of attention is that, if someone challenges the necessity of the rule of law, society is not accustomed to defending it.
My first job as a lawyer was with a small firm. The two partners advised me to serve as court-appointed counsel for criminal defendants who could not afford an attorney. Doing this provided me the opportunity for a great deal of courtroom experience very early in my career. Once I started representing defendants in criminal cases, I got used to answering one question from friends and family, “How can you represent someone you know is guilty?” My response was simple. I believe wholeheartedly in the system. If the prosecutor does her job fairly and to the best of her abilities, and I do my job fairly and to the best of my abilities, and the jury weighs the evidence fairly and objectively, the truth will prevail. In short, the law will be applied fairly to all who come before it.
I am not naïve. I know the system has shortcomings. In my opinion, these shortcomings often occur when someone loses faith in the system. If a police officer thinks the court is being too lenient on defendants, he may decide it is necessary to “add” a little evidence to the case. If a defense attorney feels the system is rigged against her clients, she may become more willing to slip in a “little” perjured testimony, just to even the scales. If a prosecutor is judged only on conviction rates, he might “forget” to disclose some evidence which could be helpful to the defense. In each case, losing faith in the system to produce fair results leads to undermining the system further.
The Rule of Law applies to the branches of government thanks to our system of checks and balances. Each of the three separate branches operates as a significant, and necessary, check on the other two. The courts can strike down any actions of the President that violates the law. Congress can change laws they feel are being misinterpreted by the courts. But this system requires everyone to buy in.
Americans have not always agreed to this careful balance. Initially, after the Revolutionary War, we attempted a system with almost no power granted to the central government. This system, the Articles of Confederation, failed almost immediately. But we were still afraid of giving too much power to any one leader after our experience under the monarchy. The system which we created decided the central government need significant power, but that power had to be divided among different branches. This would prevent any one part of the government from becoming too powerful.
James Madison, writing in The Federalist, No. 51, explained the idea this way:
“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
I am reminded of a story told by Judge Deanell Tacha of the Tenth Circuit Court of Appeals (the Federal Appeals Court for much of the Midwest, one level below the U.S. Supreme Court in the Federal system). Judge Tacha was serving on a committee helping to establish a court system in one of the countries created after the breakup of Yugoslavia. The members of the committee had spent several days explaining the division of power, and the court’s role in a divided government. One of the local judges raised his hand to ask a question. “What do you do when they send the army after you?” As Judge Tacha notes when telling this story, no U.S. judge in over a century has worried about this question because society has, in general, placed its faith in the system of justice and division of powers. This system is, unfortunately, very hard to recreate and very easy to undermine. Once the participants lose faith, it may well prove impossible to repair the damage and restore the trust.
Recently there has been a considerable amount of discussion regarding President Trump’s comments about the judicial system. The three most famous examples of his criticisms are his statement that the judge hearing litigation against Trump University could not be fair because of his ancestry; his response to a respected federal judge in Washington ruling against the President’s Executive Order on Immigration where he referred to him as “a so-called judge” and said to blame the judicial branch if anything bad happens; and his comments about the Ninth Circuit Court of Appeals after a panel of judges unanimously upheld the lower court ruling. There are many who feel this rhetoric has gone too far and represents a challenge to fundamental principles of our system of government. There are others who point out all Presidents have problems with the court system and all have been critical of decisions; in short, this is nothing new.
In my opinion, this rhetoric is potentially the most serious Presidential attack on the Court system since FDR attempt to change the number of Supreme Court Justices so he could “pack the Court” with votes. That was a blatant attempt to politicize the Courts which, thankfully, failed. Had President Roosevelt been allowed to increase the size of the Supreme Court simply to gain approval of his political agenda it would have encouraged each successive President to attempt similar manipulation of the Court. What President Trump has done is different. His criticisms go to the bedrock principles of our system of checks and balances. He has essentially argued, in all three instances, that the Courts cannot be trusted. Whereas Roosevelt was attempting to seize control of the Court, it appears Trump is attempting to undermine the Court’s legitimacy.
I mentioned this is potentially a serious threat. It may well turn out that President Trump is only engaging in politicking to obtain an outcome he favors and will smooth out the rough edges of his statements going forward because I believe the concern is the tone of his comments. It is normal for a President, or for Congress, to disagree with a court’s decision, just as it is normal for the courts to disagree with a legislative or executive act. Had the President simply defended his Executive Order, and expressed disappointment in the rulings, it would not be an issue at all. If he changes his tone moving forward, then I believe this issue will ultimately blow over. The concern many people are expressing is that he will not make those changes. His tone today is the same as his tone throughout the entire campaign. He did not moderate his tone after he won the nomination, he did not moderate his tone after he won the election, and, so far, he has not moderated his tone since taking office.
I believe there is reason to be concerned, but no need for panic. The President does need to change his tone when he disagrees with the courts or the legislature. It is important to understand our system is fragile, more fragile than we usually notice. The President’s words carry extra weight. All of us should strive to be more civil when we disagree, but it is imperative for the President to do so. If people lose faith in the Rule of Law, as instituted by the system of checks and balances, it may lead to devastating consequences. If the President can begin to express his disagreement with individual decisions, while still expressing his faith in the underlying system, we will all be better served.
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