The current political environment may be an exceptional chance to see our system of government in action, and understand “separation of powers” and the role of the federal judiciary.
Many are dismayed by the actions of the current administration. However, the outcries and outrage—the statements by those who say our democracy and government are being destroyed—may be causing their own kind of harm.
Mainstream broadcast media and social media messaging that questions the independence and integrity of the federal judiciary, including the U.S. Supreme Court, may be contributing to the erosion of confidence in the federal judiciary and Supreme Court reflected in public opinion surveys. And with an erosion of trust, it is more likely that members of the public will say it is okay to ignore the courts’ rulings. To uphold the rule of law, however, we must understand and respect all three branches of government and ask them to do their jobs.
Our forebears set up our government to address situations like we see today.
The founders of the United States foresaw, and experienced, disagreements and advocacy that were chaotic, disrespectful, and viewed as undemocratic. Thus they established a system of government, reflected in the Constitution, that provides for an independent judiciary to adjudicate disputes regarding the actions of the executive and legislative branches of our government. This third branch of government—the independent judiciary—would determine the legality of the actions of the executive and legislative branches under the laws and Constitution of the United States. Ultimately, the U.S. Supreme Court decides the law of the land, whether actions are permissible—that is, consistent with the Constitution—or not.
The executive and legislative branches need not agree, nor must they fail to aggressively pursue their desired policies through executive or legislative actions. But the members of these branches are required to recognize and honor the decisions of the federal judiciary regarding the legality of actions and the law of the land.
Positions and actions of the executive branch or the legislative branch—the president or Congress—may be viewed as unlawful by the other branch; however, the executive or legislative branch may take actions and pursue them aggressively until the action is found to be unconstitutional or otherwise unlawful by the independent judiciary. That is the way our system is structured and the way it works.
Thus, the president and his cabinet members—and even those with roles we may not understand—may take even outrageous positions and actions until the action is found to be unlawful under the Constitution or other applicable law.
Our judiciary—the third branch of government—must be allowed to do its job and respected for doing so. We may not like a judicial decision, but we must follow and respect it. When a decision is made that a party does not agree with, the appropriate action is to appeal the decision—not ignore the decision, or attack the judge(s) who made it and seek their removal or impeachment.
Remember that advocacy and disagreement led to the creation of this great nation, led to many of the changes and advancements over the years since, and will continue to do so as we move forward. Our system is not perfect, but “E pluribus unum” (“Out of many, one”) and “United we stand, divided we fall” must be principles we live by as we move forward. We are united as one under the Constitution to pursue life, liberty, and the pursuit of happiness for all citizens—collectively as a nation and a people, not as one individual, group, or party as opposed to another.
We will always have groups and leaders who will try to divide us in order to control us and destroy us, to destroy the collective “one” that we are as a unified nation. However, we are free not to fall into this trap, free to put the collective, unified one, our nation, above the many. If we are united in support of the one, we succeed, and those who seek to divide, control, and destroy us as individuals will fail.
We, humans, created our system of government, with our free will, our prejudices, frailties, and failings. We must thus take responsibility for ensuring the system is understood and operates for all of us. Each of us as citizens must accept the responsibility to participate and protect the collective—our government and way of life.
How do we do this? As a start, we can ensure that we, and our friends and neighbors,
- understand the way our government works—the three branches of government and how they interact to govern and ensure the success of our country;
- understand our role as citizens (and attorneys) with respect to each branch, and how we can stay engaged and take action to ensure we fulfill our responsibilities;
- understand the issues that are important to us, where those issues are within the government, and how we can get involved and participate; and
- do something about those issues and responsibilities.
It can feel difficult to “do something,” but it can help to take a step back and focus your energy.
Decide what you want: What is important to you? What is the issue, and what do you want to happen? Try not to simply get upset, check out, or give up.
Slow down and think about the issue or problem and what you would like to see happen. Learn more, or discuss productively with others rather than making angry posts.
Simplify the problems, solutions, and actions: Work to break things down to where there is something that can be done. Don’t let the complexity of an issue overwhelm you and make you feel helpless; there is always a place to start.
Take action: Execute your plan. Start with small actions and steps to get the ball rolling.
We can each be a part of supporting the independent judiciary and the rule of law, and of working for change in a way that maintains respect for our system of government.
This article is part of a series on the rule of law and its importance for business lawyers created by the American Bar Association Business Law Section’s Rule of Law Working Group. Read more articles in the series.
The views expressed herein are solely those of the author and are not necessarily those of the author’s employer, the American Bar Association, or the Business Law Section.