Across the country, the legal profession has been focused on the president’s executive order, the court decisions regarding the constitutionality of the order, and the president’s comments about the judiciary. Regardless of your political views, I ask you to consider these events in a different context—one that sets aside policy positions and embraces an institutional perspective of the judiciary. Let’s leverage recent events into an opportunity to unite our profession and promote the legitimacy of the judiciary.
Public support for the judiciary depends on whether you like its decisions. When it comes to the legitimacy of the judiciary as an institution, however, the best predictors of public support are democratic values, the most important of which is support for the rule of law. The more you know about American democracy and its underlying values, the more likely it is that you can differentiate between the role of our political institutions (the president and Congress) and the role of the courts. Armed with this knowledge, you accept that courts play a special role in our government and are worthy of trust, respect, and legitimacy.
Why should our profession help enhance the legitimacy of the judiciary? Over 200 years ago, we decided that to maximize our individual liberty and freedom, we would govern ourselves as a democracy, based on the principles of consent, equality, and majority rule. We also decided that self-government was not sufficient to achieve individual liberty. Because majorities tend to act selfishly and abuse power, they cannot be trusted to limit themselves. We placed limits on democratic authority through the rule of law and created the judiciary to enforce those limits. In short, we established a constitutional democracy. The democratic element embraces self-government. The constitutional element emphasizes limits. The tension between the rule of law and the will of the people is inescapable.
If you have reservations about the judiciary placing limits on self-government, consider the Constitution as a device of pre-commitment against future weakness of will. Just as an individual might follow the example of Odysseus and bind himself to the mast, it is rational for a society to bind itself to the rule of law to protect itself from its predictable tendency to act on passion and do things it will later regret. Consider also that the judiciary, by enforcing the Constitution, improves the performance of our democracy.
Does the judiciary really need our support?
You may believe that the judiciary is “independent” and does not need our support. Our federal judges are appointed rather than elected, hold their offices for life, can be removed only by the extra-majoritarian process of impeachment, and are protected from any diminution of compensation. Political scientists, however, have demonstrated that judicial independence is sometimes a myth. The reality of judicial power is that it ebbs and flows depending on the political environment within which the judiciary operates. This is because the judiciary is “the least dangerous branch” and has limited powers. It cannot execute and enforce its own decisions. It cannot finance its operations and the implementation of its decisions. The judiciary must be mindful of ordering more than will be enforced. Judicial power is constrained when other branches defy court decisions, or threaten the judicial with court-curbing legislation. President Jackson refused to enforce the Cherokee Indian case, Worcester v. Georgia (1832), making his famous remark, “John Marshall has made his decision, now let him enforce it.” During the Civil War, President Lincoln disregarded numerous decisions by state and lower federal courts holding that the suspension of habeas corpus was unconstitutional. After the Supreme Court invalidated much of the New Deal economic program, FDR proposed his famous court-packing plan.
In Brown v. Board of Education (1954), the Supreme Court held that state-enforced segregation of public schools was unconstitutional. Ten years later, 90.7 percent of black children remained in all-black schools and seven of the 11 southern states had not placed even 1 percent of their black students in integrated schools. Brown showcased the limits of judicial power in the face of absolute defiance and token compliance by those charged with implementing the decision. What’s more, in Brown II (1955), the Court mandated that segregation be ended “with all deliberate speed.” The Court could not order more than it could enforce and bowed in the face of Southern resistance and the absence of support from President Eisenhower. The promise of Brown was unfulfilled until the judiciary received support from the president and Congress in the 1960s.
Let’s support our judiciary
Brown shows that there are costs to our society when we don’t support our judiciary. The judiciary depends on public support for the efficacy of its decisions and its power and legitimacy. As members of the legal profession, it’s not enough for us to be supportive spectators. We need to get onto the playing field. The public knows little about the judiciary. Public trust and confidence in our judiciary are rather low. As lawyers, we interact with all sorts of people every day. Let’s take every chance we have to teach the public about the judiciary. Let’s play our part in promoting the role of the judiciary, the Minnesota way. This is public service.
Sources: James Gibson and Gregory Caldeira, “Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court,” Journal of Politics (2009); Alexander Hamilton, Federalist No. 78; Jon Elster, Ulysses Unbound: Studies in Rationality, Precommitment, and Constraints; Alexander Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics; and Gerald Rosenberg, The Hollow Hope: Can Courts Bring About Social Change?
ROBIN M. WOLPERT is a legal strategist, litigator, and appellate lawyer at Sapientia Law Group, where she focuses her practice on complex business litigation, data privacy, constitutional law, and political law compliance. Robin represents clients in litigation involving private parties or the government, parallel civil and criminal proceedings, civil and criminal appeals, and investigations.