The All-Out Assault On The Rule Of Law
The rule of law is the foundation that supports the pillars of our democracy. It creates a social contract and is the arbiter of disputes as well as the insurer of basic human rights. Lofty stuff, but what exactly is the rule of law? The World Justice Project offers a four-pronged functional definition.
The government and citizens are accountable under the law.
The laws are clear, just, and applied evenly to protect fundamental rights, including core human rights.
The process by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
Justice is delivered timely by competent, ethical, and independent representatives that reflect the makeup of the communities they serve.
There is a growing body of evidence depicting stress cracks in the rule of law. If the damage is not repaired, our tripartite system of Government, civil rights, elections, free press, etc.—will be replaced by a very different social order. Democracy is neither guaranteed nor absolute, and it ceases to exist without the rule of law. Lawyers and an independent judiciary are the rule of law’s ultimate defenders as well as the masons to restore it. They are locked in an expanding, unrelenting assault on the rule of law coming from multiple fronts and in old and new ways.
How Bad Are Things And What Can Be Done To Fix Them?
Our country has an acute access to justice crisis-- the vast majority of individuals and small business that need legal assistance are denied counsel due to sky-high prices. When most people-and small businesses- cannot afford a lawyer even when they desperately need one, confidence in our legal system wanes. The perception is that only the wealthy can afford a lawyer, and real ‘justice’ is reserved for the rich or connected. Fortunately, there are fixes to the access to justice crisis. Advances in technology, new legal delivery models, a focus on process, and a surfeit of unemployed and underemployed lawyers provide an opportunity for affordable legal representation for the many millions of Americans in need of it. This will help to restore public confidence in the legal system—and lawyers. It will also ease the suffering that often results from pro se representation—or forfeiture of rights – in a range of life-altering situations that includes eviction, discrimination, immigration matters, divorce, etc.
Law enforcement agencies are frequently under suspicion and attack. The rift between those charged to ‘protect and defend’ and the public they serve has widened in recent years. Likewise, public perception of equal enforcement, rights, and protection under the law has eroded. There are no quick fixes. A return to ‘beat cops’ who know and are known to the community, more diversity in law enforcement, better community relations between law enforcement and the citizenry, and sentencing parity is a start.
Millions lack legal recourse for fear that to seek it might result in legal proceedings, deportation, or retribution from criminals. Human trafficking has reached alarming levels, and a significant segment of the population live in a sub-society outside the rule of law. This deprives millions of basic human rights, emboldens criminals who pray on them, and creates a growing shadow society that is detached from the mainstream. This erodes the rule of law for all and poses multiple threats to society. The rule of law applies to all who are here—even those who may have circumnavigated it upon arrival.
Social Media’s Impact on The Rule of Law
Social media serves many salutary purposes and poses challenges, too. Social media has created a powerful court of public opinion that threatens to undermine the judicial process as society's arbiter of justice. Snippets of human interaction are captured on a smart phone or other device and go viral in minutes. This creates an instant, powerful, quickly scalable, and often biased court of public opinion.
Social media is unfettered by rules of evidence that weigh credibility, materiality, and prejudicial impact. Social media is wildly popular because it is accessible, fast, unfiltered, and largely devoid of rules—the antithesis of the deliberate-often snail like pace of the judicial process. Social media has become a people’s court, shaping public opinion by providing a snapshot rather than a montage of human interaction and lacking truth filters. Social media also can serve as a global bullhorn for ‘leaks,’ misinformation, and propaganda. There are no easy fixes. Technologists, social scientists, media experts, legislators, and lawyers—among others-- must create inter-disciplinary guardrails for social media to insure—among other things—that it does not subvert the judicial process. Social media is a new frontier in establishing appropriate boundaries for free speech as well as ensuring that the court of public opinion does not eclipse the judicial process as the arbiter of the social contract.
The Executive Branch And The Assault On The Rule Of Law
The President is using his bully pulpit—and Twitter—to continue a withering, fact-challenged assault on the already vulnerable institutions that support our democracy. This proved to be an effective campaign tactic. But the President of the United States applying a wrecking ball to our institutions is something altogether different and alarming. His frequent references to ‘so-called’ federal judges (his older sister sits on The Third Circuit Court of Appeals), ‘the enemy of the American people’ mainstream press, and a dismissive response to the intelligence community's determination that Russia intervened in the recent election is nothing short of an Executive Branch assault on the rule of law. Fiery, fact-agnostic proclamations and ready assignment of blame for the scapegoat du jour fails to address why so many people feel left behind, bewildered, and susceptible to propaganda that promises easy fixes. Phrases like 'draining the swamp' are thinly-veiled calls to eliminate established processes and safeguards and to create new ones--without intervention by 'so called' judges, the 'dishonest media' or political opponents. This is not the America we learned about in grade school civics class.
The President’s withering rebukes of federal judges Curiel, Robart, the Ninth Circuit Panel that unanimously ruled against his 'Muslim ban', the entire Ninth Circuit, and others who interpret the law in a way inconsistent with his agenda, cannot stand. The independence of the Judicial Branch is essential to our rule of law and our democracy. Imagine if it had been Bush v. Trump rather than Bush v. Gore. Al Gore disagreed with the divided Supreme Court’s majority whose ruling handed the Presidency to his rival, George W. Bush. Yet Gore vigorously defended the judicial process—and the rule of law-- by swiftly and unequivocally voicing his acceptance of the Court’s decision. Would Donald Trump have acted similarly? The judicial branch must hold its ground, and the legislative branch should be its ally—not by endorsing specific court decisions but by ensuring the judicial branch's freedom to render them. This is not about politics but process.
Several law schools are offering courses on the rule of law. Lawyers are volunteering to defend it. The judicial branch has already evidenced a commitment to elevate process over politics. The legal profession is reminding the public that for all its flaws it serves a vital role in our democracy as the defender of the rule of law. And it serves that role for everyone. Free of charge.