Lawyers Journal

Imminent threat to the rule of law

Former Chief Justice Margaret Marshall, reflecting on her early years as a citizen in South Africa, uses a metaphor to explain the importance of the rule of law. "When you are breathing oxygen, you don't notice it; when you cut off the supply, you will notice it very quickly."

Professor "Mo" Cunningham, the renowned scholar and chairman of the Political Science Department at the University of Massachusetts Boston (and a former Suffolk County assistant district attorney), paraphrasing President Abraham Lincoln's comments at a time when the rule of law was crumbling, instructs us that "our political religion must respect the law" and our judicial system or "society will come crumbling down."

With dysfunctional courts, he warns, "we are going to reach that point." And, serving as the apostle of the obvious, Cunningham tells us that "there is a point where you just can't tighten your belt any longer, we're at it right now."

For most of us, the American judicial system has been one of the few constants throughout our lives. Courts and the judges who sit in them have been models of stability, equipoise and scholarship. When political leaders like Arkansas Gov. Orval Faubus prohibited African-American children from entering Central High School in Little Rock or Mississippi Gov. Ross Barnett and the trustees of the University of Mississippi blocked James Meredith from matriculating, our courts and judges righted those wrongs.

When captains of industry, like the CEOs of WorldCom, Enron, Tyco and Global Crossing, crossed the boundary of proper business conduct and engaged in criminality, our courts and judges removed them from their corporate suites and provided alternate, supervised housing for them. Revolutionaries, like Raymond Luc Levasseur, could not destroy our system of justice by detonating bombs in our courthouses; the business of the courts continued without fear. The day-to-day enforcement of criminal and civil laws has always gone forth quietly, surely and swiftly, promoting great predictability to our lives.

Most of us never step back and ask ourselves what "the rule of law" means; and few of us, if any, ever consider it at risk. But what would happen if the rule of law in this country simply failed?

What would the evil, violent people in our midst do if there were no courts? Would they take advantage? Would we be safe in our homes and communities? How about the captains of industry? Would they cheat and steal from us? Could we trust our landlords or bankers? Would our children and incomes be secure from estranged spouses?

The foundation of the rule of law in the Commonwealth of Massachusetts is full, adequate public financial support for the courts. But the truth of the matter is the public (and our elected officials) do not properly support the courts. As a result, the law economy is crumbling all about us. Courts are closing; judges are retiring early; support staff are laid off or just not replaced.

The most important point for all stakeholders to note as they ponder the decline in the law economy is the erosion in the rule of law, and with it, the decline in the quality of life in the commonwealth.

Images from Syria, Libya and Somalia show us the ugly face of lawlessness. Murder is common in Ciudad Juarez, barely across the Texas border. Kidnappings for ransoms are now said to be common in southern Arizona.

Professor Cunningham points out to us that the citizens of the commonwealth interact with the courts much more than the other two branches of government, and warns that, if the courts fall apart, even the best of our citizens will lose faith in our system. Lack of respect for the rule of law, he says, presents "a great danger to society."

By underfunding the justice system, we put at risk the way in which we live our lives, and with it, our hopes and dreams for ourselves and our children and grandchildren.

"Without courts, no justice -- no freedom. That's what it comes down to," says Bill Robinson, president of the American Bar Association. "And it's true," says Denise Squillante, immediate past president of the Massachusetts Bar Association.

By the time this edition of Lawyers Journal is published, Gov. Deval Patrick should have released his proposed FY2013 budget. The House of Representatives, and then the Senate, begin their budget debates in April and May, respectively. You can make a difference by contacting your state senators and representatives and demanding a fully funded judicial system. This may be the most important public service you will ever render in your career. Your family, friends, neighbors and communities need you. Get on it.

©2014 Massachusetts Bar Association