Rule of Law: What Makes America Great

The rule of law is the most important part of a civil society. While many criticisms can be made about legal decisions, the fundamental principles of a legal system provides protection for all, provides for a strong economy where companies and people can operate with a semblance of order and that system ultimately makes our country strong.

One of our great Founding Fathers, Alexander Hamilton, noted in Federalist No. 78 that judicial independence is “the best expedient which can be devised in any government to secure a steady, upright, and impartial administration of the laws.” We should never forget that great lesson.

This column is not about whether President Trump’s policies are right or wrong—every reader will have his or her own views; each of us has the right and the ability to make up our own mind.

This column is about one important concept: that our system of government is made up of three equal parts: the legislative, the executive and the judicial. Each has its role to play. One should not and cannot threaten the other without putting at risk everything that makes our country strong and great.

When I hear President Trump threaten judges who disagree with him with impeachment, when I hear some of President Trump’s supporters raise their voices in hate and anger against courts who rule against them, I fear for our system, and I fear for our country.

Often when I talk to clients who have investments in China or Russia or other non-democratic countries, they tell me that it is the court systems that make them the most nervous. In some countries, the courts are corrupt. In others, they are simply not independent.

In China, for example, the constitution states that everything in the governmental system, including the courts, is subordinate to the leadership of the Communist Party. What do you think happens if you have a dispute with a company controlled by the party?

That doesn’t happen in the United States because our judges are not controlled by one ruling party, and their lifetime tenure means that even if they are appointed by one administration, their career may extend through Democratic and Republican presidencies—often with many switches back and forth.

Indeed, most judges before whom I have appeared focused on applying the law to the facts and prided themselves on performing that analysis to the best of their abilities and not motivated by politics or which president appointed them. That is a key feature of our system, not a bug.

I worry greatly that if our great judges start to fear that their rulings may expose them or their families to harassment from the very top of the country, or to threats, or even to violence, then our system of judicial independence will quickly be undermined.

And when that happens, confidence in the entire edifice of government will unravel.

No one likes to lose in court and most lawyers criticize the judge’s opinion when they lose. But win or lose, I want the case to be on the facts, on the law, on the strength of the argument and not because one side is better connected, or politically powerful, or has the might of the presidency behind it.

The principle of judicial independence is one that everyone can and should rally around. It is too important for defining what the United States is, and what it is not. It is a fundamental “which side are you on” red line.

I was very happy to see that our [U.S. Supreme Court] chief justice, John G. Roberts Jr., who was nominated by Republican President George W. Bush 20 years ago, made a strong statement underlining that the courts must be respected.

“For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision,” Roberts said in a statement. “The normal appellate review process exists for that purpose.”

Process, procedure, respectful logical presentation of legal arguments that are then adjudicated fairly and impartially—these underpin our legal system. And our legal system, in turn, is one-third of our finely balanced form of government, a government that has served this country well, but it requires the people in power to respect that system to continue to make our country great.

Bryan Sullivan is a leading attorney who has represented high-profile clients in entertainment, intellectual property and corporate investments.