One good news story from election 2020 that has gotten insufficient attention is the continued independence of America’s courts.
Across the country, state and federal judges — appointed by both parties — have resisted President Donald Trump’s efforts to subvert the voters. From Pennsylvania to Georgia to Michigan and beyond, judges have rejected false White House claims of massive fraud and chastised his lawyers for failing to present evidence.
One thrilling moment took place last week in Philadelphia, when federal appeals court Judge Stephanos Bibas, a Trump appointee, bluntly rejected efforts to reverse certification of Pennsylvania’s voting results. “Free, fair elections are the lifeblood of our democracy,” he wrote in a unanimous decision joined by two George W. Bush appointees. “Charges require specific allegations and then proof. We have neither here.”
As autocrats around the world try to crush rule of law and Trump tries to subvert it, the show of judicial independence by Bibas and other judges signals to the world that America’s democratic instincts remain strong.
Just compare Bibas’ rebuke with the system of “telephone justice” in Russia, a still-used Soviet term meaning officials can phone a judge and tell him how to rule.
Or take note of the ongoing tragedy in Hong Kong, where an independent judiciary has been the foundation of this quasi-democracy. Hong Kong courts, steeped in British judicial traditions (complete with robes and wigs), were what made Hong Kong an international financial hub. Unlike mainland courts, they weren’t servants of the Communist Party.
But with Beijing’s recent decision to crush Hong Kong democracy, the judiciary has become a target. A new national security law passed in Beijing permits the mainland to bypass local courts, oust elected lawmakers — or even force Hong Kongers to stand trial on the mainland. Pro-democracy protesters are jailed and judges who show them lenience are denounced. Party officials call for reigning in judicial autonomy.
To Hong Kong’s mainland overlords, “rule of law” now means “rule by party laws” laid down by Beijing.
Even sadder is the democracy backslide of post-1989 democracies Poland and Hungary. Keep in mind that the nationalist leaders in both countries have been embraced by Trump.
Following Hungary’s lead, Poland’s ruling party packed its Constitutional Tribunal and the National Judicial Council (which appoints judges) with party loyalists. Then the so-called “muzzle law” enabled the sacking of judges who speak up for rule of law.
The repression of judicial independence in Warsaw and Budapest has gotten so egregious that the European Union is trying to tie their access to EU funds to their renewing respect for rule of law.
So the shining example provided by U.S. judges in rebuffing fake Trump charges of fraud is important not just for U.S. democracy, but to show the world that America’s judicial independence has survived.
Mark Aronchick, an attorney who represented several Pennsylvania counties, including Philadelphia, in election cases brought by the Trump campaign, believes they proved the health of our judicial system. “The [U.S.] judiciary has been under a stress test for the last four years,” he told me. “But if you had any belief that all these attacks from Trump or surrogates would erode judicial independence, the proof is that nothing like that happened.”
“Why did [Rudy] Giuliani not get away with it?” he asked rhetorically about the Trump personal lawyer’s theatrical court performances. “Because he was in a controlled legal setting where you needed to provide facts and evidence and not go in with conspiracy theories.
“In a totalitarian country, Giuliani could make that kind of an argument to a judge. That’s not what we have here.”
Aronchick still believes that there are too many checks on the choice of federal and state judges to undermine the overall quality, no matter the party they come from and despite a few lemons. The checks, he says, include the media, bar associations, and legal vetting by lawyers who take the process seriously. On the Supreme Court, he argues that Americans should take a wait and see approach to learn how the balance shakes out.
When it comes to America’s example to the world, he recalled a lecture he gave to students and faculty at Beijing’s prestigious Tsinghua Law School, where the audience was convinced rule of law was quickly eroding under Trump. He cited 20 executive orders handed down by Trump that courts had mostly rejected, which were then either withdrawn or appealed. “Trump abided by the rulings,” Aronchick told the Chinese.
“There is no prospect for a president to corrupt the justice system,” he argues. “Our justice system has shone through.”
Maybe this is excessive exuberance by a lawyer who triumphed over Trump’s efforts to defraud voters. The situation would certainly be more dangerous if the president had won a second term.
But overall, this election was a victory for rule of law and for America’s overseas image. It revealed a court system that refused to bend to a president’s political will.