The Routine of the Rule of Law

Susan Estrich on Jan 9, 2025

This year, Jan. 6 was a routine day. Congress certified the election of Donald Trump. They did it in 30 minutes, instead of the overnight session in the wake of riots four years ago. As one Democrat put it, there were no election deniers on the Democratic side. The rule of law triumphed, routinely. Imagine how different it might have been had the results of the election been different.

The big question -- at least for those of us who are fans of the rule of law -- is just how routine the next four years will be. In his end of the year message, without naming names, Chief Justice John Roberts sounded the alarm. Judicial independence, he wrote, "is undermined unless the other branches (of government) are firm in their responsibility to enforce the court's decrees. ... The courage of federal judges to uphold the law in the face of massive local opposition -- and the willingness of the Eisenhower and Kennedy Administrations to stand behind those judges -- are strong testaments to the relationship between judicial independence and the rule of law in our Nation's history. Every Administration suffers defeats in the court system -- sometimes in cases with major ramifications for executive or legislative power or other consequential topics. Nevertheless, for the past several decades, the decisions of the courts, popular or not, have been followed, and the Nation has avoided the standoffs that plagued the 1950s and 1960s. Within the past few years, however, elected officials from across the political spectrum have raised the specter of open disregard for federal court rulings. These dangerous suggestions, however sporadic, must be soundly rejected."

Across the political spectrum?

I'm not so sure. The dangerous suggestions I've heard, at least, come from the Republican side. They come from J.D. Vance and from Trump himself. Vance has been explicit. In a much-quoted podcast from 2021 that helps explain why Trump picked him, the vice president-elect said: "If I was giving him (Trump) one piece of advice, fire every single midlevel bureaucrat, every civil servant in the administrative state. Replace them with our people. And when the courts -- because you will get taken to court -- and when the courts stop you, stand before the country like Andrew Jackson did and say: 'The chief justice has made his ruling. Now let him enforce it.'"

That is dangerous talk, which Vance has reaffirmed. In an interview last year, he told George Stephanopoulos: "The Constitution says that the Supreme Court can make rulings, but if the Supreme Court -- and, look, I hope that they would not do this, but if the Supreme Court said the president of the United States can't fire a general, that would be an illegitimate ruling, and the president has to have Article II prerogative under the Constitution to actually run the military as he sees fit." Article II prerogative to ignore the rule of law? Trust me, they don't teach that at Yale Law School. Or as he told Politico: "When the Supreme Court tells the president he can't control the government anymore, we need to be honest about what's actually going on." What's actually going on is that we live in a democracy, with an independent judiciary, with checks and balances.

It's not just the vice president who has expressed contempt for the rule of law. In his pointed rejection of Trump's latest request for what he called "president-elect immunity," Judge Juan Merchan, the judge in Trump's New York conviction case, noted: "Defendant's disdain for the Third Branch of government, whether state or federal, in New York or elsewhere, is a matter of public record. Indeed, Defendant has gone to great lengths to broadcast on social media and other forums his lack of respect for judges, juries, grand juries and the justice system as a whole."

What happens when the president and the vice president openly express such contempt? The chief justice is right to be worried. Jan. 6 was a routine day. The next four years look to be anything but.

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To find out more about Susan Estrich and read features by other Creators Syndicate writers and cartoonists, visit the Creators Syndicate website at www.creators.com.