Hank Greenberg: The Apolitical Administration Of Justice, An American Birthright | WAMC

Hank Greenberg: The Apolitical Administration Of Justice, An American Birthright

Mar 10, 2020

Engraved on the front of the U.S. Supreme Court building in Washington, D.C. are the words: “Equal Justice Under Law.”

Those four words embody the premise and promise of the American experiment in democratic self-government — that the law is a level playing field, regardless of our differences, like race, gender and socioeconomic status.

Equal Justice Under Law is no mere ideal.  Over 200 years ago, Thomas Jefferson, the author of the Declaration of Independence, rightly said that the provision of “equal and impartial justice to all [] citizens” is “[t]he most sacred of the duties of government.” 

The faithful observance of this sacred duty is the strongest pillar of our freedom. 

Politics has no place in our courts. 

Judges, prosecutors and juries are charged with making decisions based on the facts, law and common sense — nothing else.

The apolitical administration of justice is our birthright as Americans.  It is what prevents the government from persecuting the citizenry, by investigating and prosecuting people for what they believe, where their political loyalties lie, or whom they befriend. 

Thus, when someone attempts to influence a prosecutor’s actions for corrupt or political reasons, injury is done to our democracy.

When a leader uses the justice system to punish critics or show leniency to lawbreakers because they are friends or political loyalists, the rule of law is replaced by the law of the leader.

Commitment to equal and impartial justice is not a partisan concern.  It is not a Democratic or Republican concern.  It is an American concern.

That is why a bipartisan furor erupted last month, when political appointees at the U.S. Department of Justice overruled the decision of professional prosecutors and lowered the prison sentence recommendation for Roger Stone, a political ally of President Trump.

Over 1,000 former Department of Justice officials, who worked in Republican and Democratic administrations, signed a letter calling on Attorney General William Barr to resign.

“Such behavior,” the former officials wrote, “is a grave threat to the fair administration of justice.”  “In this nation, we are all equal before the law. A person should not be given special treatment in a criminal prosecution because they are a close political ally of the President.  Governments that use the enormous power of law enforcement to punish their enemies and reward their allies are not constitutional republics; they are autocracies.”

Likewise, a few years ago, the Chief Justice of the United States, John Roberts, took the President to task when he characterized a federal judge who ruled against his administration as “an Obama judge.”

The Chief Justice said: “We do not have Obama judges or Trump judges, Bush judges or Clinton judges.” “What we have is an extraordinary group of dedicated judges doing their level best to do equal right to those appearing before them.”

More recently, the Chief Justice rebuked the Minority Leader of the U.S. Senate, Chuck Schumer, for inappropriate remarks he made about two Justices of the Supreme Court in connection with a highly charged case involving abortion rights.

It is this simple: If we are to keep our democracy, judges and prosecutors must stand above politics.  Those who suggest otherwise betray their ignorance about our constitutional norms and traditions.  Worse, they undermine the public’s faith in the capacity of our institutions to do justice. 

In emerging authoritarian regimes, rulers politicize and undermine respect for the independent institutions of a free society.  They discredit and demean judges and prosecutors who make decisions with which they disagree, leading the public to question the fairness of the justice system.

The injection of cynicism into the bloodstream of the body politic is toxic.  It weakens our institutions and tears down the guardrails of democracy.  That, in turn, breaks down society and, ultimately, can result in tyranny. 

Assaults on the rule of law strike at the vitals of our nation.  We must, therefore, demand full devotion by our leaders to equal and impartial justice and hold them accountable when they fail to give it.  The stakes could not be higher for America’s present and future.

Henry ‘Hank’ Greenberg is president of the New York State Bar Association.

The views expressed by commentators are solely those of the authors. They do not necessarily reflect the views of this station or its management.