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
Last 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
And they kept going
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
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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
That lesson brought us on to a bus
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
That is precisely the point
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 or citizens strongly dislike. That is unavoidable in a constitutional democracy
The answer is appeal, legislation where constitutionally permissible, or constitutional amendment. It cannot be intimidation, retaliation for unpopular rulings or the suggestion that compliance with lawful court orders is optional
Once adherence to judicial decisions depends upon whether the politically powerful agree with them, we have left the rule of law behind
In Wooster, Ohio, about 150 people gathered across from the historic courthouse. The discussion was not about red America or blue America. It was about ordinary life
The rule of law is why you can deposit money in a bank and expect it to be there tomorrow. It is why contracts mean something, property can be protected and an individual citizen can enter a courthouse and challenge the government
These protections seem ordinary only because generations before us built institutions strong enough to make them ordinary. When the rule of law works, it is almost invisible
Judges are trained – rightly – to exercise restraint. During our years on the bench, we spoke through our rulings. That tradition is essential to maintaining confidence in an impartial judiciary
But restraint should not be confused with silence about the survival of the institution itself
When judges are threatened because of their rulings; when an adverse decision is answered not with an appeal but with demands for retaliation; when courts are judged legitimate only when they produce politically desired outcomes, those who understand the system have an obligation to explain what is being lost
Our Polish friends understood this before we did. Their circumstances differ from ours, and comparisons should be made carefully. But the lesson travels well
The rule of law does not defend itself. Neither does an independent judiciary. Constitutions are pieces of paper unless citizens and public officials possess the courage and habits necessary to honor them
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Four days on a bus will not persuade a nation. The purpose was more modest: to begin conversations, one community and one citizen at a time, about institutions Americans have been fortunate enough to take for granted
That work belongs not only to judges and lawyers, but to all of us
The rule of law is not something judges possess. It is something citizens inherit
And every generation must decide whether to preserve it
What’s giving us hope now
Justice Robert F Orr (retired): What gives me hope is the scope of individuals and groups now focusing and talking about the rule of law and the independence of our judiciary. Our bus trip had a great mix of backgrounds and experience both in the judges participating and meeting us at stops as well as the young people who amplified the message across various media platforms. It’s genuinely a national movement
Justice Michael P Donnelly (retired): What gives me hope is the genuine appreciation we encountered during the bus tour for the role of an independent judiciary in protecting individual rights and civil liberties. The people we met understood that these freedoms, defended at great sacrifice throughout our history, cannot be taken for granted – and that each generation must be willing to stand up for them
Michael P Donnelly is a retired justice of the supreme court of Ohio
Robert F Orr is a retired justice of the supreme court of North Carolina. Both participated in the Justice in Motion tour organized by the Democracy Rising Collaborative and Keep Our Republic
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