Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Friday, December 11, 2020

Three cheers for an independent judiciary!

I'm feeling grateful for our independent judiciary, and I hope you are too. And no, I’m not just talking about the U.S. Supreme Court's unanimous rejection of Texas’s attempt to overturn the election results in other states.  It’s also important to note that the Court issued four unanimous rulings yesterday on a variety of thorny legal issues. Since 2000, in fact, a unanimous decision has been more likely than any other result.  The public too often has – and too often is deliberately given – the impression that the Supreme Court is simply another battlefield for our political and cultural tribalism with “conservative” justices pitted against “liberal” justices in a no-holds-barred death match.  It’s not.  Our laws are shaped by competing visions of the good, to be sure, but the rule of law matters in ways that transcend politics. The legal merits of a case are not simply a function of political preference.

Even the 5-4 decisions are about more than politics.  Back in 1989, Justice Scalia provided the fifth vote in ruling that the constitutional right to free speech includes a right to burn the American flag.  He later explained, "If it were up to me, I would put in jail every sandal-wearing, scruffy-bearded weirdo who burns the American flag. But I am not king."

We are a nation of laws, not monarchs.  In the election’s aftermath, the legal system is working as intended.  Judges are focusing on the evidence and applying laws established through legislation and centuries of precedent, regardless of their own political affiliation. 

To cite one example of many, Justice Brian Hagedorn of the Wisconsin Supreme Court was president of the conservative Federalist Society in law school and served as Republican Governor Scott Walker’s chief counsel. Last week, when his court rejected an attempt to invalidate Wisconsin’s election results, he wrote separately to warn that “judicial acquiescence to such entreaties built on so flimsy a foundation would do indelible damage to every future election." 

At a time when long-accepted political norms are under serious strain, our courts’ continued commitment to the rule of law is a reason for gratitude and hope.

Robert Bolt, in “A Man for All Seasons,” famously depicts an exchange between Sir Thomas More and a young idealist, William Roper, about giving the accused the benefit of the law.

William Roper: “So, now you give the Devil the benefit of law!”

Sir Thomas More: “Yes! What would you do? Cut a great road through the law to get after the Devil?”

William Roper: “Yes, I'd cut down every law in England to do that!”

Sir Thomas More: “Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country is planted thick with laws, from coast to coast, Man's laws, not God's! And if you cut them down, and you're just the man to do it, do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake!”

In our highly polarized nation, Americans do not agree on who the Devil is.  Fortunately, we don’t have to.  An independent judiciary helps us ensure that the laws apply to devils, angels, and everyone in between.


Vischer, Rob | Permalink