Guest Column
Our courts are at risk of losing their legitimacy | Column
The new year may answer the question whether we are a democracy in terminal decline. The courts will play a decisive role in that determination.
A view of the U.S. Supreme Court at dusk.
A view of the U.S. Supreme Court at dusk. [ DREW ANGERER | Getty Images North America ]
Published Dec. 28, 2021

As the year closes, American leaders wrestle each other in unrelenting contests for power submerged in ideology, demagoguery and self-interest. No one side can win in any lasting sense in a republic, but that doesn’t stop the combatants from fighting to the death –– aiming for the demise of ideas and at times, it seems, of actual people. Our era in America is as histrionic as any Marvel film, but no guarantee exists that good eventually prevails.

Michael McAuliffe
Michael McAuliffe [ Provided ]

In a rule of law nation, issues –– minor or major –– that arise from these battles often end up in the courts for ultimate resolution. The courts can play a critical stabilizing role as the country moves in fits and starts along the timeline of history. Courts replace violence. That function, however, depends on the court’s credibility as a true referee and arbiter, not an ordinary soldier on the field.

This year has been a study in contrasts for the courts — much to be confident in, but too many judicial acts beneath their legal veneers appear to be political in nature. First, what was inspiring.

The trial judges in the criminal cases involving the deaths of Daunte Wright, Ahmaud Arbery, and George Floyd –– all receiving intense national coverage and scrutiny –– provided examples of calm judicial guidance throughout the proceedings. These judges acted with professional diligence so that all parties had a fair hearing in what were highly charged matters. The resulting verdicts should be viewed as credible, regardless of whether they are considered correct by all.

The exception in the criminal trial courts might be the Kyle Rittenhouse trial in Wisconsin. In that case, the presiding judge repeatedly and publicly ruminated about the media coverage of his rulings and behavior. The judge, while very experienced, seemed notably unaware that he was himself being judged by a nation that needed the focus to remain on the the sensitive issues being decided by the jury.

On the civil side, trial courts overwhelmingly responded with transparency and timeliness to the onslaught of lawsuits filed contesting the presidential election. Over 60 suits in state and federal courts requested relief ranging from rejecting particular ballots to declaring losers to be winners based on specious claims of fraud. Importantly, one can make the statement that there was no widespread election fraud with extra confidence because of the actions of trial court judges who, on the record, allowed the parties to present evidence they had (or didn’t have) based on objective law and rendered their decisions in public.

Unfortunately, the most troubling portrait of the judiciary over the past year comes from the U.S. Supreme Court, our highest court. During oral argument in the challenge to the Mississippi law outlawing abortions after fifteen weeks, the justices appeared to engage in a culture war in microcosm. A lay observer could well think the legal issues were a mere proxy by which the justices served up what was expected of them by their constituencies, whether that might be senators who conferred the position, a president who made the nomination, an advocacy group, or some other source of support. The debate didn’t appear to be about deference for long-standing precedent articulating a constitutional right. Further, the court’s energetic use of the “shadow docket” (which does not employ the usual process of filings, advocacy, and opinions) in cases including the litigation over the Texas statute that arms private litigants with the ability to punish abortion providers and those seeking abortions undermines any eventual decision the court issues.

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Courts are at ongoing risk of devolving into factionalized forums that serve the loudest advocates with the most resources, or the judge’s own personal views. The current political and cultural fights are testing the justice system’s role as the best and most legitimate forum for resolving disputes (aside from free and fair elections). The courts first must provide due process to all parties who enter the halls of justice while not allowing abuses of the system to stall progress or preclude finality (election results). All else flows from that fundamental principle.

The upcoming year may answer the question whether we are a democracy in terminal decline. The courts will play a decisive role in that determination.

Michael McAuliffe is a former federal prosecutor serving both as a civil rights prosecutor at the Department of Justice and as a supervisory assistant U.S. attorney in the Southern District of Florida. He also served as the elected state attorney for Palm Beach County, Florida. Currently, he is an adjunct professor at William & Mary’s Law School and a senior lecturing fellow at Duke University’s School of Law. His novel No Truth Left To Tell was published in March 2020.