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To borrow a phrase from the distinguished jurist Learned Hand, “Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.”Judicial independence, an independent bar to defend our courts and judges, and the separation of our three branches of government are important hallmarks of our democracy.Two important notes from our history are worth repeating and remembering.
When our Declaration of Independence was written in 1776, Thomas Jefferson and John Adams pointedly featured the refusal of King George III to assent to the laws establishing judicial powers and the king’s relentless attacks on the judicial branch and judges.Secondly, Adams, a future president, as a lawyer defended a captain and eight soldiers charged with murder as part of the Boston Massacre, a most unpopular stance at that time in our history. Adams took on the unpopular case because he believed everyone, regardless of their standing, deserved a fair trial and due process.
Adams later said that his defense was “one of the best pieces of service rendered to my country.” He proudly upheld the principle of justice and a right to a fair trial.Judges in our state and federal courts are prohibited from reacting or commenting to public statements and criticisms by others, including criticism from legislators and members of the executive branch.
It is critical that judges show restraint and courage so that all parties can respect the integrity and fairness of the courts.Our judges don’t wear red or blue robes to indicate their political parties because, once they ascend to the bench, their impartiality is critical to the preservation of our individual liberties. External pressures can’t, and shouldn’t, affect their ability to protect all of us from the encroachment of oppressive legislation and executive actions that do not square with the principles and dictates of our Constitution.
The purpose of our courts is to protect rights and resolve disputes.Unpopular decisions by our courts are inevitable, particularly in the present polarized nature of our electorate. Brown v.
Board of Education, a unanimous opinion from the Supreme Court, was highly contentious as were the Dobbs decision, overruling Roe v. Wade, and Obergefell, which recognized same-sex marriage. These decisions may have been unpopular in some parts of the country, but our judges and courts are needed to resolve these disputes and they play an essential role in protecting our democracy and preserving liberties.
Parties and the public should always have the right to question the courts, and lawyers should always have the right and the duty to ensure that everyone, regardless of their positions or their wealth, may challenge legislative overreach and executive infringement of protected rights. It is wrong to sow the seeds of doubt about the integrity of our courts and judges by legislators and members of the executive branch. Undermining the integrity of our judges undermines the public confidence and trust in the rule of law.
If there is no trust in the rule of law, the very foundation of our democracy will collapse.Sign up for Viewpoints, an opinion newsletterOur courts, our judges and our lawyers play an essential role in ensuring that each branch of government recognizes the limits of its own power. Protecting our liberties by striking down laws that violate the Constitution are the only guardrails that will protect us from becoming another authoritarian country.
Lawyers who take on controversial cases should not be silenced or threatened.There are no successful democracies where the judicial branch lacks independence. Let’s not forget that fact.
Jeffrey A. Breit of Virginia Beach is past president of the Virginia Trial Lawyers Association..
