Commentary: It is the miracle of the rule of law in U.S.
By Susan Estrich
It’s easy, as a law professor and practicing lawyer, to take the rule of law for granted and even to question its existence. In my classes, I teach students cases in which courts, on similar facts, reach conflicting results, notwithstanding the fundamental principle that the rule of law means like cases must be treated alike. What’s the difference, I ask my students, knowing that sometimes, the answer is no more than who is sitting in the room.
While judges secure confirmation by claiming to do no more than “call balls and strikes,” no sophisticated student of the law really believes them. It’s no coincidence (albeit an unfortunate reality) that the current Supreme Court splits so often along the lines of party appointment — with four Democratic appointees on one side and five Republican appointees on the other. It’s no coincidence that judges appointed by Democrats tend to be more liberal than those appointed by Republicans, or that Democratic appointees are so much more likely to be pro-choice and Republicans more likely to uphold restrictions on abortion. Politics, we say.
Nor is it just law professors who find fault with courts on a regular basis. In my experience, most of the judges I appear before are careful and principled, even if they disagree with my clients. But there are days when I just shake my head — at a judge who ignores the facts or fails to follow controlling authority or asks the same uninformed questions repeatedly.
Quality of representation matters — a lot. The better lawyer doesn’t always win, but it certainly helps, and better lawyers tend to be more expensive (admission: I am very expensive) than less experienced or skilled ones. Middleclass folks — not poor enough to qualify for free assistance, not rich enough to afford my rates — often find the doors to the courthouse effectively closed without regard to the merits of their claim. Representing yourself is rarely a very good option.
So yes, our system of law is flawed. The rule of law doesn’t always mean we are a nation of laws and not of men. There is so much room for reform, for improvement. Justice is not always blind. I write books about it.
And then I see what is happening in Egypt, and I remember just how lucky we are, just how difficult it is to create a society in which the rule of law stands at least as an ideal. I remember how much of a struggle it can be to establish a Constitution that is as enduring and as brilliantly conceived as our own.
The headlines are both shocking and reassuring. The “democratically” elected president makes a grab for power, putting himself above the law. Judges and lawyers have every reason to be afraid — not for their jobs, but for their lives — if they stand up to the man who claims to be above them.
But they do, protesting the president’s power grab and a Constitution that woulad not protect the rights of minorities: the essence of a Constitution. After all, powerful majorities don’t need the protections of courts; they have power. It is, as our own Supreme Court recognized a century ago, “discrete and insular minorities” who depend on the courts to protect them from the tyranny of the majority.
It is not easy to establish the rule of law in a country that has never known it. Some of those protesting were doubtless very happy to be part of a government of men and not of laws as long as they were the men in charge. But the broad-based protests in Egypt make clear that the hunger for justice is a powerful force.
And even more, they should remind us that for all the flaws in our own system, we remain, when it comes to the rule of law as with so many things, the luckiest people on the face of the globe.
Susan Estrich’s email address is email@example.com.