They say that you can only celebrate a judicial decision as a vindication of the rule of law if you really dislike the outcome.
Based on that standard, I can honestly celebrate Nov. 21, when the California Supreme Court decided a case known as Patterson v Padilla as a good day for the rule of law.
Patterson was the case in which the California court unanimously struck down the state statute that would have required President Donald Trump to release five years of his tax returns before he could qualify for the California primary ballot.
The court held that the law violated California’s state Constitution, which guarantees recognized national candidates for president open access to the State primary.
The outcome is not what I would have liked. Like most Democrats — and like most Americans — I believe that Trump should release his tax returns and I am mystified that he has gotten away with not doing so. The California statute had been passed on a party-line vote and was a very popular partisan challenge to Trump.
The impact of the decision was also not its most important aspect. Trump said he would pass up the California primary rather than comply with it and the law had already been enjoined by a federal court.
What was great about the decision was that, despite our highly partisan environment, it was rendered by a court on which a majority of the justices had been appointed by Democratic governors.
This Democratic dominated court still rendered a unanimous decision against the law. Here we have an example of judges vindicating the requirements of the law despite what must have been their personal preferences. The real winner in the case was the rule of law itself.
The separation between law and politics is one of the great achievements of American jurisprudence. The rule of law not only means that judges are independent of governors, presidents and legislators, but also that judges follow the law and not the preferences of party bureaucrats.
We are not China.
The rule of law is why we Americans do not have to worry about what government officials think of our opinions or even, as a general rule, of our business plans. Americans do not need friends in high places to live lives of freedom and prosperity. That is our gift to the world and the foundation of our nation.
All this should be obvious. The reason that it is crucial to recognize the achievement in Patterson is that Americans are in danger of forgetting, or even denigrating, the rule of law. Many Americans no longer believe that it is possible to separate law from politics.
Certainly, they believe that judges from the other political side do not do so.
It was a year ago, that Trump, frustrated by an immigration decision, railed against an “Obama judge,” by which he meant judges appointed by President Barack Obama — or by other Democratic presidents.
In response to this presidential tweeting, Chief Justice John Roberts asserted that “We do not have Obama judges or Trump judges… .” Roberts insisted that we have judges who follow the rule of law.
I noted at the time of that exchange, that almost all the commentary about the episode — from politicians, from pundits and even from law professors — basically agreed with Trump.
People differed over their preferences of which side should rule, but did not disagree that Democratic judges will vote with one party coalition and Republican judges with the other. This is tantamount to saying that there is no rule of law. There are only partisan outcomes.
This cynicism about the law — even nihilism about legal outcomes — is why Republicans in the U.S. Senate have worked assiduously to put their judges and justices on the federal courts.
Senate Majority Leader Mitch McConnell, R-Ky., makes no secret of this. Speaking to the Federalist Society National Lawyers Convention in 2018, he observed that “the closest thing we can do to have a permanent impact is to confirm judges and transform the judiciary. [A]nd we are going to keep on doing it for as long as we can.”
Anyone who can speak of a “permanent outcome” in the courts thinks that he knows how “his” judicial nominees will vote in future cases.
The Democrats share this cynicism.
That is why several of the 2020 Democratic presidential hopefuls talk openly about packing the U.S. Supreme Court— adding enough justices to the current, statutory standard of nine — to overcome its current conservative majority.
Obviously, Democrats believe that this is the way they can have a “permanent impact.” They agree with McConnell that they can predict, and in a way control, how Democratic judges will vote into the future.
The outcome in Patterson reminds us, however, that judges are not representatives. Their job is to follow the law and not partisan preferences—including their own. In Patterson, that is exactly what the California justices did.
Americans are genuinely worried about the future of public life. We do not see a way forward that can bridge our current partisan divisions.
But our way forward is not a mystery. It simply requires more decisions and actions like Patterson—more instances in which people say what they mean and try to reason with each other. Because we are so jaded and suspicious, we tend not even to try to do that.
The California decision shows that our despair is unwarranted. Americans are fully capable of discourse. We are fully capable of fair judgment with regard even to contentious issues. The way to improve our public life is to participate in it in the way that we say we want others to do. Or, as Gandhi is reputed to have said—“Be the change you wish to see in the world.”
The judges in Patterson were just that change.
Capital-Star Opinion contributor Bruce Ledewitz teaches constitutional law at Duquesne University Law School in Pittsburgh. His work appears biweekly on the Capital-Star’s Commentary Page. Listen to his podcast, “Bends Toward Justice” here.
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