Taking the rule of law for granted

On May 25, the Radcliffe Institute honored Margaret Marshall, aka Margie, the brilliant and charismatic former Chief Justice (first woman) of the Massachusetts Supreme Judicial Court. She is best known for her opinion holding that same-sex couples have an equal right to marry under the Massachusetts Constitution, but that is only one of many carefully reasoned opinions authored by her in her years on the court.

Margie’s speech was about the rule of law and what she sees as the threats to an unbiased and independent judiciary, which is at the core of a government of laws and not men (and women). Margie herself is a native of South Africa. She came to this country because her leadership of other college students protesting apartheid left her no choice but to flee her home. So when it comes to the rule of law, she comes to the issue with an appreciation for that particular miracle borne of experience.

In her speech, which was typically brilliant and stirring, she warned of what she sees as the political threats to the independence and impartiality of judges. She decried the decisions striking down laws that said candidates running for judgeships should not announce how they would rule on particular cases. She expressed grave concern for the increasing role of unrestricted money in judicial election campaigns. And she singled out the comments of one unsuccessful presidential candidate who literally said that he would not follow Supreme Court decisions with which he disagreed.

She got a standing ovation. Well deserved, in my opinion.

The next day, I got on a plane and flew to Ukraine. This is a beautiful, fascinating, exciting country. It is also a place where you cannot help but realize just what a miracle it is to live in a country where lawyers practice law without fear, where judges are expected to decide based on law and not political ties, where we can worry about the corrupting influence of money rather than old-fashioned and dangerous corruption.

For two days, my law partners and I talked to lawyers who are on the front lines of creating a legal system in a country that literally did not have lawyers until 1991. Many of the “stars” looked like kids to us, and why not? They are the first generation of lawyers. We heard about what works here and what doesn’t, and about the firm that was destroyed when police came in and seized their computers and their files. We heard about contracts — and there are many — that specifically state that they are to be enforced in London under English law, and not here in Ukraine, where they are entered into and actually carried out. We met with lawyers bursting with energy about the future they are building, and dour types who seem resigned to the obstacles to enforcing judgments and securing justice.

It is not easy to create the rule of law in a country that never had it. It is not easy to convince people that there can be such a thing as an impartial judiciary composed of men and women who make decisions based not on who is in power, but on how they read the Constitution and how they interpret statutes, judges who agonize about justice and not politics.

I am not so naive as to believe that anyone — and certainly not anyone who gains a position by getting elected or by getting appointed by a politician — is truly apolitical. When Supreme Court nominees describe themselves as “umpires” and then go on to vote consistently with the other justices who were appointed by the same political party, you would have to be naive to think that the courts are above politics. There is only so far a courageous judge can go in getting ahead of the popular political will.

Margie pushed the envelope, and it moved, but there were many who feared that the court had gone too far and too fast, and those fears were grounded in political realities that judges ignore at their peril.

Still. Sitting in a country where a prominent law firm can be destroyed by a search and seizure for which there was apparently no judicial recourse reminds me of both how complicated and precious our system of justice is — and of how unbelievably lucky we are. Conservatives and liberals, Republicans and Democrats, straight and gay, rich and poor, we are fortunate to be able to take the existence of such a system, with all its imperfections, for granted.

© 2012, Creators Syndicate Inc.