Law Day is Cause for Celebration, Vigilance for the Rule of Law
By Justice Jennifer Brunner
Established by President Dwight D. Eisenhower in 1958, Law Day is celebrated May 1 and throughout the month of May. Law Day is a time to reflect on how our system of justice makes our lives better.
When we remember Law Day, we celebrate and rededicate ourselves to this bedrock principle: In the United States, justice should not depend on who you know or how much money or influence you have. We believe instead that our nation is guided by the rule of law. We seek justice through the application of an objective set of rules administered by trained and impartial fellow citizens who have sworn their faith to the Constitution. It’s not something the country has always lived up to with perfection, but it is our shared covenant, our promise to each other and to future generations.
We have seen from the earliest days of the Republic that, at times, politics and power have been the impetus for attacks on the very courts that work to keep those promises sacred to the shared destiny of the people they serve.
One of the most famous examples occurred 190 years ago this spring.
In March 1832 the U.S. Supreme Court ruled in a trilogy of cases that Native American tribes must be treated as sovereign nations with respect for their rights and with a manifested firm purpose to afford protection stipulated by treaties.
The high court’s decision was widely unpopular, especially to President Andrew Jackson, who reportedly responded: "[Chief Justice] John Marshall has made his decision; now let him enforce it!” Historians have said the quote is apocryphal, but Jackson’s administration did indeed mobilize forces to defy the court’s ruling and bring about one of the earliest — though sadly not the last — constitutional crises we have endured as a nation.
Time and again, hyper-partisans and decriers of “legislating from the bench” have tried to prevail over measured judicial decisions with tactics not respectful of our principles of democracy or of judicial independence. When trying to silence a court that has reached a decision that strikes at the heart of abused power, the tactics have often been to attack the work of courts. Very often, “legislating from the bench” or “judicial activism” are phrases used to delegitimize the work of courts when they operate as a check and balance on another branch of government. But these difficult decisions of courts were envisioned from the beginning as necessary to keeping us together as a nation.
Another example from history -- opponents of reforms in food safety and worker conditions in the late 19th and early 20th centuries accused courts that upheld those laws as being “judicial activists.” Opponents of the New Deal worked to undercut judges who upheld those laws. They accused the judges of “legislating from the bench” while they fed hate-filled propaganda to vulnerable individuals, forming them into opposition groups with convenient names. And later, segregationists found ways to delay implementing Brown v Board of Education, because they claimed that the landmark decision that struck a historic blow to institutional racism was judicial activism.
There are limits to judicial power, and one of the strengths of the judiciary is that it is expected to — and does — exercise its judgment to self-impose restraint on its own power. The judiciary, especially a supreme court or high court, in following the law and the Constitution, takes the long view. It does this because inherent in how the judiciary acts is the public’s confidence in the judiciary — and in the government as whole.
What we celebrate on Law Day and throughout the month is the miracle of American democracy. We treasure that our democracy is designed to balance power between three branches in working toward a truth that points us forward, even if the passions of the day make the going rough.
The founders of American democracy and its rule of law were students of human history, politics, and law. They drew from Western traditions and knowledge and wisdom that dated back to the ancient Greeks. From Plato to Hobbes to Hamilton, early American founders understood that justice, peace and security require a social compact by which citizens agree to be a part of a civilized society based on facts and reason and not one ruled by brute force.
They formed this Republic with a brilliantly simple and unprecedented design, establishing three separate but coequal branches — the legislative, executive and judicial.
The judiciary was (and is) by design, the weakest of the three independent branches of the U.S. government. Hamilton wrote in Federalist No. 78 that the courts “have neither FORCE nor WILL, but merely judgment …” The late U.S. Supreme Court Justice Sandra Day O’Connor referred to the judiciary’s power as the “Power of the Quill,” saying, “The Judicial power lies in the force of reason and the willingness of others to listen to those reasons.”
In other words, the power of the courts is in the trust and confidence that the people have in their judges and the institution of the judiciary. Above all, people expect courts to be impartial and independent of partisan interests.
If we revere and honor the fact that our rule of law — promising fairness, equality, and respect to all persons — is the basis for the social compact that is our government, we should support that rule of law and arm ourselves with knowledge of its institutions and design, especially in the face of partisan attacks. When we do this, we are supporting the foundations of our constitutional democracy and working to help the fabric of our society stay strong.
The late Ohio Chief Justice Thomas J. Moyer knew from his many years working in Ukraine the need for public confidence in the judiciary. He once wrote: “Our system of laws and constitutions is only as strong as the trust extended to it by those who are governed. But that trust is fragile.”
Let’s work together to support the rule of law as we celebrate Law Day and every day.
Jennifer Brunner is a Justice of the Ohio Supreme Court and candidate for Chief Justice. She is a former trial and appeals court judge, former secretary of state, and 2008 recipient of the John F. Kennedy Profile in Courage Award.