In a book written about the landmark Marbury v. Madison case published 2009, Cliff Sloan and David McKean retold a story told by Chief Justice John Roberts about a Russian judge who was chatting with European colleagues at a law conference somewhere in Europe:
When the Russian judge said that he would like to emulate the American judicial system, a European judge sneered, “Why did you come all the way here if you just want a can of Coke?” The Russian judge replied, “Actually, I do not like Coke. I like my wine French, my beer German, my vodka Russian, and my judicial institutions American.”
If there remain judges in Putin’s Russia who can freely express admiration of anything American, they may not feel the same way today. Even some on the left feel anguish after what William Barr calls the “abomination” that took place in Judge Juan Merchan’s New York court.
What destroys the judiciary’s reputation is its own collusion with forces seeking something other than the blindfolded justice that has been its proud ideal.
If we will still abide by the rule of law, then this verdict, unreversed, will establish a principle in law. Worse, it might be the harbinger of a new era in which law is no longer ruled by principle but is suborned to the whims of those who make law on the fly to suit their politics.
Let us say, for argument’s sake, that we are not yet at the full-blown nihilist stage, and our judges will continue to follow principles. The clearest precedent of this case is that the wall of restraint that characterized our country for more than two centuries is fallen and judges and prosecutors will be expected to intervene in elections on the flimsiest of pretenses, as long as the political atmosphere favors it. Those on the left might well dread that judicial systems of conservative cities or states might find a misdemeanor which an unrestrained legislature allows to be inflated into a felony. (READ MORE from Shmuel Klatzkin: Biden Distracts Americans. Turns on Israel With New Ceasefire Proposal)
This is particularly true given the vagueness of what was so central to the New York case, as Merchan defined it in his wildly off-the-wall jury instructions. Lurking beneath the steaming pile of allegations was the idea that the execution of a non-disclosure agreement was felonious corruption. If principle still applies, the lawyers who execute non-disclosure agreements every day in order to protect their clients’ reputations will have to tremble that they may be participants in a felony if their client is unpopular enough with those in power.
Suppose, to follow a line of reasoning Victor D. Hanson has mooted, that Idaho or Arkansas find a felony in the collusion of the press in scrubbing the record of Obama’s dinner with a Hamas supporter in the lead-up to the 2008 election, and their legislature writes a way to backdoor that felony through some peccadillo of the Obama campaign in that state. Or Biden and Blinken get shoe-horned into the same thing for their quashing of the Hunter Biden laptop story. The debate in which Biden said that the laptop accusation was a lie aired in every state. If this case establishes principle, then there is every reason to expect that Republicans will use it, too. As long as we are still dealing with principled law, the kind of law that drew the admiration of the Russian judge.
The discrediting of law comes about through the abuses of those who are entrusted with the judicial power. When Andrew Jackson defied the Supreme Court and expelled the Cherokees from their land, it did not discredit the judicial system. Same applies today, as Joe Biden brags about violating the SCOTUS decision that declared his cancelling of college loan debts as unconstitutional. The branches of government clash, and the American public has generally upheld the Supreme Court when it clashes with the Executive or the Legislatures. (The egregious Dred Scott decision stands as the greatest exception; the Taney court had to be corrected by years of civil war.)
What destroys the judiciary’s reputation is its own collusion with forces seeking something other than the blindfolded justice that has been its proud ideal. The Founders and the Framers were all too aware of how English law had been corrupted by tyrants and used solely to enforce political power. American lawyers’ training imbued the Common Law tradition, which under the banner of its most scholarly exponent, John Selden, carried forward the idea of constitutionality through civil war and dictatorship until it emerged triumphant.
Selden suffered for his view that all are constrained by law and the reigning executives cannot dictate what justice must be. For his troubles, he was several times imprisoned by puppet judges who stayed in their office only as long as the king was pleased with their rulings.
In his later years, Selden commented on judges ruefully to his dinner companions. One such comment:
We see the pageants in Cheapside, the lions and the elephants, but we do not see the men that carry them; we see the judges look big, look like lions, but we do not see who moves them.
He did not mean we don’t know who does.
Another shorter remark on the judiciary:
There could be no mischief done in the commonwealth without a judge.
It was this savvy knowledge of the realities of corruption that enabled constitutionalists like Selden and our Framers to construct an ethos of impartiality and devotion to justice, knowing that their restraint was all that lay between the new republic and the same old tyranny that stained history. (READ MORE: Welcome to Venezuela, America)
William Barr expressed confidence that the verdict Merchan shepherded through will be thrown out on appeal. Many others express the same confidence.
For the sake of all that is good and admirable about our system of justice, may that be true.
