‘Restraint should not be confused with silence about the survival of the institution itself.’ Photograph: Brian Jackson/Alamy View image in fullscreen ‘Restraint should not be confused with silence about the survival of the institution itself.’ Photograph: Brian Jackson/Alamy Opinion US news As retired US judges, we’re not used to speaking out. But we cannot be silent Michael P Donnelly and Robert F Orr We joined a recent bus tour of 30 judges, lawyers and advocates fighting not for any partisan aim, but for the rule of law itself
L ast October, US lawyers, judges and rule-of-law advocates traveled to Warsaw as guests of the Carter Center. Neither of us was among them. But when our colleagues returned, their stories inspired us.
They told us about judges and lawyers across central Europe who had been surveilled, smeared, prosecuted and sometimes jailed for standing between political power and courts meant to remain independent.
Poland’s example was especially compelling. When its government sought greater control over the judiciary, Polish judges put on their robes and marched through Warsaw. Judges from across Europe joined them in what became the March of 1,000 Robes.
Then they left their courthouses and traveled through towns and villages, explaining what an independent judiciary means to a farmer, shopkeeper, parent or business owner. They talked about law not as an abstraction, but as protection against arbitrary power.
Read more They understood a truth Americans can no longer overlook: judicial independence cannot survive merely because judges believe in it. The public must understand why it matters.
Last month, shortly after the United States celebrated its 250th birthday, the Justice in Motion tour traveled from western Pennsylvania through Ohio and into Michigan. Thirty sitting and retired judges, lawyers and advocates handed out pocket constitutions, met students and asked a question Americans do not consider often enough: what does the rule of law mean in everyday life, and what happens when we take it for granted?
In Columbus, we did something neither of us imagined during our years on the bench. We put on our robes and marched from the federal courthouse toward the supreme court of Ohio, carrying purple flowers, an international symbol of judicial independence.
American judges do not ordinarily march in the streets. Nor should they. The judiciary derives much of its legitimacy from restraint. Judges do not campaign for particular outcomes or answer criticism with press conferences. They speak through their decisions. But these are no ordinary times.
And our Polish colleagues taught us that silence can carry its own risk.
Our march was not about Democrats or Republicans, nor about defending particular judges or decisions. It was about defending the system that allows legal disagreements to be resolved according to law rather than political power.
One of us was elected to the supreme court of Ohio as a Democrat. The other was elected to the supreme court of North Carolina as a Republican and is now an independent. Through two long careers, we have disagreed about plenty.
The rule of law is not a partisan possession.
Both sides enter a courtroom with the right to be heard. Judges must apply the law to the facts without regard to which party is more powerful, popular or politically useful.
Sometimes judges get it wrong. That is why we have appellate courts. Sometimes courts issue decisions that elected officials o…