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Susan Estrich
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The Miracle of the Rule of Law


It's easy, as a law professor and practicing lawyer, to take the rule of law for granted and even to question its existence. In my classes, I teach students cases in which courts, on similar facts, reach conflicting results, notwithstanding the fundamental principle that the rule of law means like cases must be treated alike. What's the difference, I ask my students, knowing that sometimes, the answer is no more than who is sitting in the room.

While judges secure confirmation by claiming to do no more than "call balls and strikes," no sophisticated student of the law really believes them. It's no coincidence (albeit an unfortunate reality) that the current Supreme Court splits so often along the lines of party appointment — with four Democratic appointees on one side and five Republican appointees on the other. It's no coincidence that judges appointed by Democrats tend to be more liberal than those appointed by Republicans, or that Democratic appointees are so much more likely to be pro-choice and Republicans more likely to uphold restrictions on abortion. Politics, we say.

Nor is it just law professors who find fault with courts on a regular basis. In my experience, most of the judges I appear before are careful and principled, even if they disagree with my clients. But there are days when I just shake my head — at a judge who ignores the facts or fails to follow controlling authority or asks the same uninformed questions repeatedly. No names, of course. I might be before them again. Most of the time, I can see where a case is going, but there are occasions when, frankly, the best (or worst) I can say is that someday the decision may be reversed. Explaining this to a client, particularly one who assumes justice will be done and truth always triumphs, is never easy.

Quality of representation matters — a lot. The better lawyer doesn't always win, but it certainly helps, and better lawyers tend to be more expensive (admission: I am very expensive) than less experienced or skilled ones.

Middle-class folks — not poor enough to qualify for free assistance, not rich enough to afford my rates — often find the doors to the courthouse effectively closed without regard to the merits of their claim. Representing yourself is rarely a very good option.

So yes, our system of law is flawed. The rule of law doesn't always mean we are a nation of laws and not of men. There is so much room for reform, for improvement. Justice is not always blind. I write books about it.

And then I see what is happening in Egypt, and I remember just how lucky we are, just how difficult it is to create a society in which the rule of law stands at least as an ideal. I remember how much of a struggle it can be to establish a Constitution that is as enduring and as brilliantly conceived as our own.

The headlines are both shocking and reassuring. The "democratically" elected president makes a grab for power, putting himself above the law. Judges and lawyers have every reason to be afraid — not for their jobs, but for their lives — if they stand up to the man who claims to be above them.

But they do, protesting the president's power grab and a Constitution that would not protect the rights of minorities: the essence of a Constitution. After all, powerful majorities don't need the protections of courts; they have power. It is, as our own Supreme Court recognized a century ago, "discrete and insular minorities" who depend on the courts to protect them from the tyranny of the majority.

It is not easy to establish the rule of law in a country that has never known it. Some of those protesting were doubtless very happy to be part of a government of men and not of laws as long as they were the men in charge. But the broad-based protests in Egypt make clear that the hunger for justice is a powerful force.

And even more, they should remind us that for all the flaws in our own system, we remain, when it comes to the rule of law as with so many things, the luckiest people on the face of the globe.

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



7 Comments | Post Comment
Isn't it a shame that we now have a President who doesn't believe in the "rule of law" or our Constitution.
Comment: #1
Posted by: Oldtimer
Wed Dec 5, 2012 4:03 AM
Its good to take a break from partisian politics and write something different now and then. That being said, this is still not a very good article. Whats the message? Our law system is flawed? Duh. Good lawyers are more expensive? Duh.
Also, Old timer I totally agree. No Estrich comment section would be complete without an anti-Obama comment. I doubt this article will fetch the firestorm of comments the usual Estrich piece does.
Comment: #2
Posted by: Chris McCoy
Wed Dec 5, 2012 6:31 AM
Estrich dishonestly offers love and support for the Constitution and then gives the game away by saying approvingly "It is, as our own Supreme Court recognized a century ago, "discrete and insular minorities" who depend on the courts to protect them from the tyranny of the majority"

And here I was foolishly thinking that justice was supposed to be blind showing neither fear nor favor to any class or creed. Here I foolishly sat thinking that it was the court's job to apply the law not to make it. Here I was stupidly thinking that it was the legislature constrained by the Constitution that held law making power not the court. Here I was thinking that in a republic, which the United States is, rather than a Democracy which it is not, because a Democracy does give rise to tyranny by the majority, whereas a Republic of the People is constrained to prevent such tyranny, that it was the proper application of the Constitution that protected against tyranny.

Now it is all clear. The rule of law does actually mean nothing in the US any more, the Constitution is meaningless and we do have a president that considers himself above the law, who has threatened the court and who is hell bent upon tyranny by a reckless minority of thieves, moochers, dead beats, welfare kings and queens and leftists.
Comment: #3
Posted by: joseph wright
Wed Dec 5, 2012 10:50 AM
Susan, you look at Egypt and realize how lucky we are.
You talk about how brilliantly concieved our constitution is.
With that kind of knowledge, why in God's name are you a democrat?
Comment: #4
Posted by: DL
Thu Dec 6, 2012 4:39 AM
Re: DL
Susan's no longer a Democrat either. She's become a Socialist, Facist or Marxist just like the rest of them! God has nothing to do with it except he's no longer involved!
Comment: #5
Posted by: Oldtimer
Thu Dec 6, 2012 6:00 AM
Given that the Constitution was mentioned in Estrich's hogwash, and given that the article was ostensibly about the rule of law and given that the Constitution was a pact as between the several states, which in legal theory at least may be nullified by the same several states, an article by Pat Buchanan comes to mind, in which he rightly posits out that Americans are already seceding from one another — ethnically, culturally, politically.

"Middle-class folks" he posits "flee high-tax California, as Third World immigrants, legal and illegal, pour in to partake of the cornucopia of social welfare benefits the Golden Land dispenses"

He rightly observes that amongst many (including me for one) there is a "bristling hostility to the federal government and a dislike bordering upon detestation of some Americans [the thieves, the moochers, the welfare kings and queens, and the progressives] as deep as it was on the day that Beauregards's guns fired on Fort Sumter"
Buchanan rightly observes that "People gravitate toward their own kind. Call it divorce, American-style".

"Eighteen states have gone Democratic in six straight presidential elections. A similar number have gone Republican".
“Can we all just get along?” asked Rodney King during the Los Angeles riot of 1992. Well, if we can't, we can at least dwell apart.

I am off to Texas, I can no longer abide living amongst the parasites and the progressive vermin that infest PA.
Comment: #6
Posted by: joseph wright
Thu Dec 6, 2012 3:49 PM
I once asked a bus full of judges what justice is, and a judge answered: whatever the court decides.
And as for Justice being blind, truth or light is all see needs

Comment: #7
Posted by: Michael J Ahles
Sat Dec 15, 2012 9:09 AM
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