The Rule of Law is one of the ideals of democracy and Western society.[1] Historically it has been the great equalizer, the guarantor of a common set of rules and equality, fairness and dignity for all.
However, legal scholars and commentators have recognized that rising economic inequality can undermine a well-functioning democracy and the rule of law.[2] Economic and social inequality increases political polarization, disrupts social cohesion, and undermines trust in our institutions and support for democracy and its values.[3]
I do not wish to be pessimistic, but we need to face reality – speaking globally, the golden era when the rule of law was taken, if not for granted, then as a universal and laudable goal, is waning.
– Chief Justice B. McLachlin, Supreme Court of Canada, September 28, 2017[4]
Overview
Across Western society there is a growing concern that the rule of law and our democratic values are declining, slowly giving way to a world in which populist and authoritarian leaning political leaders – tapping into social and economic insecurities, political polarization, and popular resentments – pursue their narrow interests without meaningful constraints.[5]
Although citizens in advanced democracies have certainly not turned their backs on the rule of law and judicial independence, afraid for the future and their role in it, there does appear to be a vacuum developing as economic and social inequality and the forces of a rapidly changing political and economic world have driven citizens “to become increasingly focused on themselves and their pocketbooks”.[6] And in economies where much of the labour force survives from paycheck to paycheck – which includes countries across the world, from the U.S. to Europe and the UK to Australia – crises like the 2020 global coronavirus pandemic exacerbate this fear as it deepens the economic inequality gap.[7]
Each generation is shaped by its experiences, and the current system does not appear to be working for many people.
Over the last two decades – as incomes stagnated, job security disappeared, and economic anxiety escalated – many middle and working-class citizens have felt, and continue to feel, that that their voices are not being heard as mainstream political parties in their countries appear to respond to ‘big-money’ political influence of “a small, wealthy, self-dealing class of” corporate and financial “elites”,[8] promoting their narrow private interest over the public interest (i.e. tax policy beneficial to their financial interests, deregulation of their industries, ignoring the warnings of science,[9] the appointment of sympathetic / ideological minded judges, etc.). This “big money” political influence has undercut representative democracy in many historically democratic countries, appropriating public policy and undermining the inclusive functioning of government to the detriment of their citizens.[10]
With economic inequality widening – and the apparent lack of effective representation in the political system – there has been a strain on the relationship between many citizens and their governments across the Western world, to the point that the appeal of populist and authoritarian leaning political leaders has grown with the mounting discontent over the status quo.[11] Authoritarian populists are on the rise.[12]
As a surge of populism sweeps the world … Canada is not unaffected by the factors that are driving this shift: the forces of globalization, increasing inequality, a shrinking middle class, automation and disruptive technology. For many, these forces are not theoretical ones. They impact their everyday lives. … As the economic landscape has changed, so too has the political.
– Jamie Watt, Executive Chairman, Navigator Ltd.[13]
History has shown that citizens of democratic countries are more willing to overlook inappropriate government conduct and give up their rights when they are afraid, that public opinion may be easily swayed given the right (or wrong) circumstances.[14] In this vacuum – this environment of fear – if the political leadership of even the most democratic country “shows utter disregard for the rule of law, and worse”, if this normalization of deviance and “disregard for the rule of law is camouflaged by” politically appointed ideological judges and monopolistic ‘special interest’ media[15] – forged into partisan party instruments – upholding their and their allies “actions as legal” and appropriate “even if they are illegal” and unethical, then the rule of law and democracy “is in real trouble”.[16]
Democracy, the rule of law, and our institutions are stable and functional – until they are not.[17] On the surface, things may look generally healthy, but society must act with care – democratic values and the rule of law is not as resistant to change as many believe,[18] leaving “many of us struggling to understand” how it is being hollowed out from within at home and abroad.[19] There is a vast difference between a society whose arrangements – in particular its government and economy – roughly serve all its citizens, and one whose institutions have been eroded from their democratic moorings, weakened “little by little”[20] over time into one that respects democracy, the rule of law, and judicial independence in name only. As noted by President Franklin D. Roosevelt, “a democracy is not safe if the people tolerate the growth of private power to a point where it becomes stronger than their democratic state itself”[21]:[22]
“[P]lutocracy and democracy don’t mix. As the late [U.S.] Supreme Court Justice Louis Brandeis said, ‘We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both’. Of course the rich can buy more … than anyone else, but they should not be able to buy more democracy. That they can and do is a despicable blot on … politics that is now spreading [across many Western societies] like a giant oil spill.”
Democracy, impartial justice, and a peaceful stable society depend on the rule of law, as do healthy market economies.[23] The rule of law and democratic values are ideals worth striving for,[24] it is not about the superficial idea of the political popularity of any particular government. It is about the ability of governments and our institutions to act in ways that earn the trust and social licence they need to effectively function on behalf of all of their nation’s citizens.
The stakes are high.
With rising inequality, it ought to be clear that there are serious challenges to democracy. … In the U.S., we are clearly seeing an erosion in democracy in that elected representatives no longer represent all people equally. Rather there is greater responsiveness to those with resources, especially those contributing to political campaigns. Increasingly those without resources find themselves frozen out.
– Professor Oren Levin-Waldman[25]
Introduction and Background
Economic and social inequality in advanced democracies has eroded trust in government, and eroded the trust and legitimacy of public institutions – including the financial system – and the way we have known them.[26] The bending of a nation’s democratic values and the public interest, the undermining of the rule of law and system of justice, has economic, social and political consequences, both nationally and internationally.[27]
Looking at the U.S. for example, recent research – from political scientists Martin Gilens (Princeton University) and Benjamin Page (Northwestern University) – suggests that this country’s political order has essentially become a corporate and financial plutocracy[28] (of the economic elite) in which policy outcomes “tend to tilt towards the wishes of corporations and business and professional associations”:[29]
“‘Our analyses suggest that majorities of the American public actually have little influence over the policies our government adopts’, Gilens and Page write:
‘Americans do enjoy many features central to democratic governance, such as regular elections, freedom of speech and association, and a widespread (if still contested) franchise. But we believe that if policymaking is dominated by powerful business organizations and a small number of affluent Americans, then America’s claims to being a democratic society are seriously threatened’.
That’s a big claim. In their conclusion, Gilens and Page go even further, asserting that ‘in the United States, our findings indicate, the majority does not rule—at least not in the causal sense of actually determining policy outcomes. When a majority of citizens disagrees with economic elites and/or with organized interests, they generally lose. Moreover … even when fairly large majorities of Americans favor policy change, they generally do not get it’.
It is hardly surprising that the new study is generating alarmist headlines, such as ‘study: U.S. is an oligarchy, not a democracy,’ from, of all places, the BBC. Gilens and Page do not use the term ‘oligarchy’ in describing their conclusions, which would imply that a small ruling class dominates the political system to the exclusion of all others. They prefer the phrase ‘economic élite domination’, which is a bit less pejorative. …
There can be no doubt that economic élites have a disproportionate influence in Washington, or that their views and interests distort policy in ways that don’t necessarily benefit the majority: the politicians all know this, and we know it, too. The only debate is about how far this process has gone, and whether we should refer to it as oligarchy or as something else.”
Inequality hollows out support for democratic institutions that depend, to varying degrees, on the promise of social and economic equality – or at least the genuine equality of opportunity.[30] The “veracity and very survival of democracy depends on a strong, prosperous middle-class – one that is able to hold government accountable”. The link between income and stable democracies “is, at a certain level, intuitive. After all, at the heart of democracy is an economic contract between citizens who consent to pay taxes and a government that, in exchange, safeguards the security and welfare of the nation by providing public goods such as education, health care, infrastructure and national security. In essence, any economic challenge that threatens the middle class places this contract – and ultimately, democracy – in peril”.[31]
Even middle-class [citizens], once snugly secure, have become increasingly anxious in recent decades about their own fragile finances and their children’s prospects. … and … For many working families, wage growth has not been strong enough to allow them to meet their basic needs on their own.
– Patricia Cohen, citing McKinsey Global Institute Study and Federal Reserve Bank of Boston[32]
Mature democracies need to pay close attention to the architecture of their political systems.[33] There can be no rule of law without an independent judiciary, and without these fundamental principles there can be no impartial justice or a true representative democracy.[34] And signs of democratic discontent are particularly visible in Anglo-American democracies and other post-industrial societies.[35]
In one way or another, the rule of law (and the independence of the judiciary) may be the oldest story across Western society: the struggle to determine whether our society “is a metaphysical reality – one nation, indivisible – or merely a charade” manipulated by “the powerful and privileged to sustain their own way of life at the expense of others”.[36]
In this context, it may be fair to say that contemporary populism[37] has taken a not so surprising twist of late, with rich country electorates in the U.S., the UK, and Europe opting for what appear to be the extreme alternatives to the status quo in an attempt to address this imbalance.[38] However, when the focus of criticism is on a particular political leader’s shortcomings – or that of the world’s fast-expanding roster of populist leaders – the main point can be missed: the actual underlying economic and social inequality crises that lifted them onto the global stage.[39]
And as politics and governments have become more partisan across the world the independence of the judiciary and rule of law has become an increasingly significant flashpoint.[40]
[I]n a world divided in differences of nationality, race, colour, religion and wealth, [the Rule of Law] is one of the greatest unifying factors, perhaps the greatest, the nearest we are likely to approach to a universal secular religion. It remains an ideal, but an ideal worth striving for, in the interest of the good government and peace at home and in the world at large.
– Tom Bingham (Senior Law Lord of the UK), The Rule of Law[41]
“Equal justice under law” is not supposed to be merely a caption on the facade of a Court building, but rather “the most inspiring ideal of our society” that the law, our rights, and justice should be the same, in substance and availability,[42] for everyone – without regard to extraneous factors such as socio-economic status, political affiliation, ideology, race, ethnicity, gender, etc. That the law and democratic values should be the same for all, so that no one is above the law, and everyone has access to the law’s protection.[43]
But we live in uncertain times today, in times when the rule of law can no longer be taken for granted. Across the Western world the Rule of Law and judicial independence has been and continues to be undermined, threatening the stability of our democracies and a society – in particular, our system of justice, the checks and balances between the three branches of government (executive, legislature, and judiciary), and trust in meritocracy, our democratic values, and our institutions.[44]
People often talk up the virtues of their national meritocracies, but – whether in France, America or elsewhere – such rhetoric seldom fits the facts. Often the purpose is to justify existing inequalities. … [E]qual opportunity is a major challenge facing all countries.
– Financial Times.[45]
The factors that have led to the decline of the rule of law and democracy “in other parts of the world are at play” in the U.S., the UK, Canada, the EU, Australia, and New Zealand. The “danger is that even if we do not experience the sharp assaults on the rule of law and the independence of the judiciary that other countries are experiencing, we are witnessing a decline in these values over time, leaving the rule of law less vigorous, and leaving the judiciary less respected and less independent”.[46] Democratic decline in the 21st century (i.e. Poland, Hungary, Turkey, and India[47]) is “rarely characterized by overt violations of the formal rule of law. To the contrary, the contemporary path away from democracy under the rule of law typically relies on actions within the law. Central among these legal measures is the early disabling of internal monitors of governmental illegality” and “changing the essential rules on the appointment of judges and undermining their independence by formal and informal practices”. Paradoxically, “the law is deployed to undermine legality and the rule of law more generally”[48]:[49]
“The bigger worry … is the slow and uneven decay.
Democracy is not a simple concept … it relies on drams of transparency, legality, impartiality, and constraint. … These are promoted by a range of different laws, norms, institutions, and individual loyalties. All of these rarely vanish all at once. Their evaporation is ineffable and easily missed.
This is the lesson the Hungarian [and Poland] experience [within the EU] offers for the United States [and the UK, Canada, and Australia]. A political party that was once dedicated to democracy can, over time, become so preoccupied with holding power that it no longer cares enough about the substance of democracy to play by the rules.”
Democratic values and the rule of law are particularly vulnerable in societies with deepening economic and social inequality as many citizens begin to believe the system is rigged. In the U.S., which is ranked as one of the most unequal countries in the developed world by the Organization for Economic Co-operation and Development,[50] some 70% of its citizens say that their “political system seems to only be working for the insiders with money and power”.[51] U.S. inequality “may now be so sharp, and the political process so tightly controlled by top earners, that necessary reforms will not happen”.[52]
And economic inequality and corruption “is more pervasive in countries where big money can flow freely into electoral campaigns and where governments listen only to the voices of the wealthy or well-connected” at “the expense of the” pubic interest and the “citizens they serve”.[53] When ‘big money’ political influence dictates what is possible in public policy – when elected representatives do not appear to represent all people equally – the current and long-term needs of most citizens (including the middle and working-class) are put in jeopardy. That is “not how a representative democracy is supposed to work”[54]:[55]
“A healthy democracy requires trust, accountability, responsiveness, and inclusion. These democratic goods are contingent on both being available and being perceived to be available. That means that not only do we need to make our institutions work for people, those people must know they work.”
Indeed, many citizens “feel their voices are not being heard”[56] by the political establishment, and that they are being left behind to struggle with economic distress.[57] A political system increasingly organized around this type of orientation and stewardship – a power structure of corporate and financial elite that has defined American and European society for decades – deepens economic and social inequality, hardens cultural and political polarization, reduces the space for economic policies to further the economic interests of broad majorities of citizens, and raises the political stakes.[58]
As the coronavirus spreads across the globe, it appears to be setting off a devastating feedback loop with another of the gravest forces of our time: economic inequality. … [I]t is deepening the consequences of inequality … and … the gap between the haves and have-nots.
– New York Times[59]
As democracies and the rule of law become more fragile, and government “big-money influenced” policy begets further economic inequality[60] and economic and social insecurity (by redistributing money upward), the response is unrest and movement away from the historical political elite (unable or unwilling to address the economic conditions) toward populist and authoritarian leaning political leaders. To a large extent this is because the trust and legitimacy of government and public institutions, and the way many people have known them, has eroded:[61]
“[W]e will only be able to [address these issues] if we ensure that the political system overcomes the very real shortcomings that have fuelled it. Ordinary people have long felt that politicians don’t listen to them when they make their decisions. They are sceptical for a reason: the rich and powerful really have had a worrying degree of influence over public policy for a very long time. The revolving door between lobbyists and legislators, the outsized role of private money in campaign finance, and the tight links between politics and industry really have undermined the degree to which the popular will steers public policy.
All of this has had a large impact on the government’s ability to deliver for ordinary people. After growing rapidly in the postwar era, the living standards of ordinary people have, in many North American and western European countries, been stagnating for decades. And the growing frustration about a lack of material progress has, in turn, helped to fuel a massive cultural backlash against the ideals of an equal, multi-ethnic [democratic] society.”
The UK ranks among the most unequal nations in Europe and many people feel they are not sharing in the country’s wealth.
– Richard Partington, Inequality: is it rising, and can we reverse it?[62]
Economic inequality resulting in a two-tier economy causes social and economic instability, and has the power to dramatically reshape our democracies[63] and rule of law. And thanks in large part to the persistent failure of many governments across the west to enact inclusive economic policy, or even a credible vision of shared prosperity and security – we are in fact seeing democratic values, if not outright failing, at least beginning to loosen and shift. In this environment, we need to assess the ways in which our institutions – political, judicial, social and economic – are inclusive and empowering and the ways in which they are not:[64]
“These shortcomings can only be addressed through substantial reform. Institutions need to curb the influence of money on politics and find new ways to allow citizens to have a say. Politicians need to recover the will and the imagination to ensure that the fruits of [the economy] are [inclusive and] distributed much more equally.”
Dissatisfaction with democracy has increased worldwide, with only 45% of people reporting that they are “satisfied with the way democracy is working in their country”.[65] As noted by the Harvard Business Review, “recent survey data paints a sobering picture: Fifty-five percent of Americans say that their democracy is “weak”, and 68% fear it is getting weaker. Roughly half agree that America is in “real danger of becoming a non-democratic, authoritarian country” (sometimes referred to as a competitive authoritarian state[66]).
Even in near-total autocracies, many of the institutions of democracy survive — in neutered form. But this process is not a quick or obvious one, at least initially. To be sure, democratic decline is studded by what, in retrospect, can be flagged as turning points. But the arc of decline tends to be incremental and slow. Key moments in the process of decline are mundane and technocratic in character.
– Vox[67]
There is a storm coming. In an increasingly partisan and polarized world – that has complicated forming stable co-operative governments and implementing effective public policy – people and ideas are divulging into incivility, conflict and turmoil, and an increasing number of authoritarian, populist and/or ideological governments have shown their frustration with the constraints imposed on them. And we are in fact witnessing a decline in our values, leaving the rule of law “less vigorous” and our judiciary “less independent”[68] as such governments and political parties argue that the ‘will of the people’ is supreme regardless of domestic or international law and values[69] (or the rights of minorities). Democracy and the rule of law “depend on the institutions” and values “that give them form. But for ‘big money influenced politicians’, authoritarians and/or populists, these checks and balances on power are often seen as an obstacle that should be subverted”.[70]
To some commentators, it appears to be increasingly evident that political leaders and parties with authoritarian tendencies are dismissive of the law, to the point that they may see the law today – including in some notorious cases the laws against war crimes[71] – as an obstacle to be overcome rather than a boundary to work within. Western countries face a wide range of challenges, from threats to its systems of checks and balances, to the increasing influence of ‘big-money’ special interests on political parties and government to obtain the policies they want.[72]
In the U.S. a 2019 survey by the University of Pennsylvania’s Annenberg Public Policy Center “identified troubling signs in how the Supreme Court and the justices are perceived by the public, suggesting that the distinction between judges and elected politicians is becoming blurred. More than half of Americans (57%) agree with the statement that the court ‘gets too mixed up in politics’. And just half of the respondents (49%) hold the view that Supreme Court justices set aside their personal and political views and make rulings based on the Constitution, the law, and the facts of the case”.[73] Justice Friedman, a United States District judge, has noted that:[74]
“Despite the independence the Constitution has provided to federal judges to insulate us from similar outside pressures, many people nevertheless now believe that federal judges, too, decide cases in accordance with their political preferences or party affiliations. Nearly two-thirds of respondents in a Harvard CAPS/Harris poll in 2018 said they thought decisions of federal judges are ‘influenced by politics’ and that our rulings are based ‘more and more on [our] political views’. Only 34 percent now believe that federal judges act independently and issue rulings based on the law as written, and 55 percent of the American people believe that the Supreme Court is motivated by politics. And to cite one unfortunate trend that corroborates this, it is now routine for the press in reporting on judicial decisions to identify the president – or at least the party of the president – who nominated the judge or judges who decided the cases.”
When political rights and civil liberties decline, we can be certain that this is accompanied by a decline in the independence and accessibility of the courts. Independent judges are the guarantors of political rights and civil liberties. … When the courts are inaccessible or constrained by the government and majoritarian forces, political rights and civil liberties decline. The connection is as simple as it is clear.
– Chief Justice B. McLachlin, Supreme Court of Canada (Sept. 28, 2017)[75]
In this political environment, it is becoming increasingly more difficult to say whether politicians, judges, lawyers or legal scholars etc., speak out of their intellectual conviction or political persuasion. When the rule of law across many Western countries appears to be politicized (or ignored), we should not be surprised to see what appears to be the utilization of ‘the rule of thumb’, an approach that is wholly dependent on a particular – read partisan – worldview, politics, and way of doing things.[76]
Among a nation’s most precious possessions is the “public trust” of its institutions and their leaders.[77] Government, the judiciary, the financial system, and the rule of law thrive on trust, such that a widening “trust deficit” poses a significant risk to society.[78] And the world is indeed facing a crisis of trust in our institutions – across all sectors – that shows no sign of abating, undermining social cohesion and economic health.[79]
As trust and public faith in government has eroded, so too has government accountability under the law. The checks and balances of our government (executive, legislative, and judiciary) have been blurred, and accountability is waning among officials sworn to uphold it. Rules, precedent, and institutional processes have yielded to “alternative facts” and ad hoc, partisan rule making,[80] to the point that judges – and even juries – on trials involving a ruling government’s allies and friends have been attacked.[81] A most recent example occurred in February 2020 in the U.S. in which jurors – in a trial involving a convicted political ally of the current U.S. administration for lying to Congress, obstruction of justice, and witness tampering – described the attacks on prosecutors, the judge and the jury by a U.S. President as “appalling”, [82] intimidating and frightening.[83]
As noted by the American Bar Association, “public officials who personally attack judges or prosecutors can create a perception that the system is serving a political or other purpose rather than the fair administration of justice” and rule of law.[84]
[T]he 2020 Edelman Trust Barometer, our 20th annual study, tells us that no institution is trusted. … Over half of our respondents said that they are losing the respect and dignity they once enjoyed in their country.
– Richard Edelman[85]
Public distrust is being driven by a growing sense of unfairness, economic inequality, and inequity in the system – the perception that our public institutions are increasingly serving the interests of the few over everyone else.[86] This is a wake-up call for our politicians and institutions to act in the public interest, to earn trust by demonstrating trustworthiness, not just in capability but also in character: balancing competence with ethical behaviour (doing the right thing, resisting big money political influence on public policy, and working to improve society).[87] And it is incumbent upon our public officials and members of the legal profession, whose sworn duty it is to uphold the law, to do everything in their power to preserve the integrity of the justice system.[88] But unfortunately, with important exceptions,[89] it appears that for many these important issues may be on the backburner:[90]
“The legal industry is principally focused on technology, new models, competition, reregulation, the sustainability of the traditional partnership model – issues that impact stakeholder livelihoods and career trajectories. Defending the rule of law is a less concrete, but seminal challenge the industry must focus on in 2020 and beyond. It is law’s version of climate change—an urgent, existential global threat that affects us all. The rule of law is the foundation that supports the pillars of democracy and freedom.”
Democratic decline is a recurrent phenomenon of the early 21st century. … Legislators and bureaucrats have the power to slow down such a degradation, but only if they recognize what is happening, and respond.
– Professor of Law A. Huq, University of Chicago Law School[91]
As noted, even in our established democratic countries, “judicial independence can be eroded little by little, by small, seemingly innocuous changes”.[92] The rule of law is a fragile societal construct – it was made and protected by the best of us (through civil discussion and debate, through the ballot box, through an engaged legal profession and independent and impartial judiciary, and yes, even a world war) and can be destroyed by the worst of us.[93] Economic and social inequality, catastrophic partisan leadership, polarization, and lack of social solidarity and institutional trust (the sense we are all in this together) is going to unfortunately cost nations with these afflictions dearly.[94]
As citizens and members of the legal profession, we either act to safeguard and preserve the rule of law and our democratic values, or it will be lost. That is the choice.[95]
Principled leadership is required at this time of polarization and fear, when institutional trust, social stability and fundamental democratic values and the rule of law are being undermined across the world.[96] Public officials, lawyers, and citizens have fundamentally important roles to play in maintaining and protecting judicial independence and the rule of law, speaking up when officials – including Presidents, Prime Ministers, Premiers, and their Attorney Generals (who are supposed to be the guardians of the public interest and rule of law)[97] – “violate constitutional norms”, undermine judicial independence, and subvert public policy and the rule of law.[98]
The rule of law is a process of governing by laws that are applied fairly and uniformly to all persons. Because the same rules are applied in the same manner to everyone, the rule of law protects the civil, political, economic, and social rights of all citizens, not just the rights of the most vociferous, the most organized, the most popular, or the most powerful.
– Chief Justice Marsha K. Ternus [99]
Rule of Law
The rule of law (and judicial independence) is the foundation that supports the pillars of our democracy[100] and is central to the stability of our society.[101] These principals are critical to Western society and our systems of government, and is what has historically separated the U.S., the UK, Canada, Australia, New Zealand, and the EU, etc., from most of the rest of the world[102]:[103]
“The expression ‘Rule of Law’ describes more generally a single, overarching rule that expresses an agreement – both as individuals and as a collective, a community – to be bound by and subject to the law. That commitment carries an explicit understanding that such adherence applies to everyone, no matter what their lineage, heritage or station in life. It means no one is above the law … The belief in and an adherence to the Rule of Law is a cornerstone of … constitutional democracy. It is the tool by which a truly impartial and independent judiciary carries out its work. It is the fundamental idea that each judge has sworn, upon oath, to uphold.”
As such, judges and judicial systems in Western democracies are intended to be insulated and independent from partisan politics, ‘big money’ influence,[104] and special interests that may consume and adversely influence the executive and legislative branches of government. The purpose is to ensure that the rule of law and impartiality will not be eroded by the political pressures in existence at any particular point in time. And by removing the ultimate interpretation of the law and constitutional provisions from elected officials, the principle of judicial independence reduces the likelihood that the rule of law – and the impartial determination of legal issues and basic legal protections – will fall victim to the partisan passions of the moment.[105]
In short, adherence to the rule of law means that all legal disputes be decided fairly and according to law, as opposed to a particular political ideology or policy preference. And judicial independence is the ‘means’ to ensure this ‘end’, an historical guarantee that a country’s rights and laws are not empty promises and will be impartiality administered.[106]
What is essential to avoid is the reality or the perception that judges are appointed because they will do the bidding of the government or favour a particular political faction.
– Chief Justice B. McLachlin, Supreme Court of Canada, September 28, 2017[107]
Not surprisingly, judicial independence is championed by the UN and the International Commission of Jurists[108] precisely because of its association with positive rule of law outcomes.[109] The U.S. Supreme Court stated in 1989 that “the legitimacy of the Judicial Branch ultimately depends on its reputation for impartiality and non-partisanship”,[110] and the Supreme Court of Canada stated that judicial independence is valued because it serves two society goals, “maintenance of public confidence in the impartiality of the judiciary” and “the rule of law”[111]:[112]
“The Rule of Law is meaningless if citizens do not have confidence that judges approach a case with an open mind and free of ties to those involved in a case. Antonio Lamer, a former Chief Justice of the Supreme Court of Canada, has said, ‘The Rule of Law, interpreted and applied by impartial judges, is the guarantee of everyone’s rights and freedoms. Judicial independence is, at its root, concerned with impartiality, in appearance and in fact.’ To this end, judges must conduct themselves—both on the Bench and when outside the courtroom—in a way that enhances the appearance of impartiality. The legal test that courts apply is whether a reasonable person could conclude the judge would be unable to be fair, objective and impartial when hearing a particular case.”
In Australia, former High Court Chief Justice Sir Gerard Brennan explained the relationship between judicial independence and the rule of law as follows:[113]
“The reason why judicial independence is of such public importance is that a free society exists so long as it is governed by the rule of law – the rule which binds governors and the governed, administered impartially and treating equally all those who seek its remedies or against whom its remedies are sought. However vaguely it may be perceived, however unarticulated may be the thought, there is an aspiration in the hearts of all men and women for the rule of law.”
Voters should feel like our courts are fair and impartial, not political playgrounds where business interests … can tilt the scales of justice with their pocketbooks … dark money and hardball politics ….
– Brennan Center for Justice[114]
On a macro level, access to justice and the rule of law promotes social stability. “Justice and a just society” are “essential to maintaining social stability and security”[115] and democracy – to obviate the societal tinder leading to “self-help and vigilantism”, to “people taking the law into their own hands”[116]:[117]
“That is a problem for the U.S. Supreme Court’s legitimacy. When it becomes easy to predict which cases, whether about voting rights or labour rights or campaign finance, will be decided along “party lines,” or when candidates campaign on promises to appoint judges who will vote a certain way when particular political wedge issues come before them, or when justices are seen as proxies for the partisan factions that put them in office, something has gone very wrong indeed. It becomes ever more difficult to maintain public confidence in an inherently counter-majoritarian institution when its members appear increasingly to be chosen for their commitment to a political party’s preferred policy outcomes. …
That American judicial nominations and confirmations look and feel like political campaigns should be no surprise. They are merely the final act of a long and deliberate process of talent cultivation that is ideologically polarized. …
None of this is to say that Canada, or other countries, enjoy anything close to consensus with respect to the legal and political controversies that have polarized the American electorate around U.S. Supreme Court. … When Stephen Harper was prime minister, he told the House of Commons that, in order to ‘crack down on crime and make our streets and communities safer,’ his government would ‘make sure that our selection of judges is in correspondence with those objectives’. …
The way the United States chooses its judges is, by the standards of any other democracy committed to the rule of law, utterly in[appropriate to protect the standards of independence and impartiality].”
The [U.S.] federal judiciary does not reflect the population that it serves, which has severe consequences for both the institution’s legitimacy and the parties who come before it.
– Danielle Root, etal, Building a More Inclusive Federal Judiciary[118]
Unfortunately, the universal recognition of the merits of the rule of law has in no way been accompanied by a universally accepted definition. One can define the rule of law narrowly or broadly, sometimes referred to as “thin” (i.e. limited to how laws are made and applied, a purely narrow, formalistic, procedural instrument of government; moving along the continuum toward ‘rule by law’ where the law does not apply to everyone equitably and/or government may be considered above the law) and “thick” (i.e. including reference to fundamental rights and democracy, and that everyone in society is bound by the law, including the government).[119] The “thick” conception of the rule of law includes both procedure and substance, with attention to normative standards of rights, fairness and equity. The “thin” conception of the rule of law is amenable to a broad range of societies and political systems. It has been suggested that a state such as the People’s Republic of China may come closest to “a rule by law system with thin rule of law characteristics”.[120] In its present day meaning, the rule of law is often used as shorthand for the existence of good governance in a particular country, and in Western society “is seen as essential for economic and social development and as a necessary prerequisite for the existence of democratic mode of governments”.[121]
The World Justice Project (“WJP”) ranks over 125 countries – utilizing four universal principles – to compile an overall Rule of Law Index ranking to serve as a quantitative tool that measures the rule of law in practice.[122] The Index is subdivided into eight categories and 44 subcategories, covering such areas as constraints on government powers, absence of corruption, fundamental rights, civil justice, and criminal justice. Despite its profound importance for fair and functioning societies, the rule of law is notoriously difficult to define and measure, and in recognition of this the WJP’ Rule of Law Index captures adherence to the rule of law based on four universal principles derived from internationally accepted standards. According to the WJP, the rule of law is a system in which the following four universal principles are upheld:[123]
- Accountability: The government and its officials and agents as well as individuals and private entities are accountable under the law.
- Just Laws: The laws are clear, publicized, stable, and just; are applied evenly; and protect fundamental rights, including the security of persons and property and certain core human rights.
- Open Government: The processes by which the laws are enacted, administered, and enforced is accessible, fair, and efficient.
- Accessible and Impartial Dispute Resolution: Justice is delivered timely by competent, ethical, and independent representatives and neutrals who are accessible, have adequate resources, and reflect the makeup of the communities they serve.
Public confidence in the judicial system is one of the essential components of a nation based on the rule of law,[124] and the judiciary’s most “sacred charge” is “to uphold the law and administer justice fairly to all persons, no matter how powerful or small”.[125] There “is little advantage in the promulgation of laws, however benign, unless there are judges who are able and willing to enforce them” and legal and career professionals not intimidated to uphold them.[126] “Otherwise, the powers that be can disregard” or manipulate “the laws with impunity”.[127]
It is said that our courts, our judges, are responsible for administering justice without fear or favor; to be fair, just and impartial. … When those who come to the safe haven of the courthouse … they should leave knowing that our courts, our judges, were there for them, administering justice fairly and impartially and insuring civil discourse in order that respect for our justice system be preserved and perpetuated.
– ABA Journal[128]
Politicization of the Rule of Law: liberty and justice for some – the normalization of social instability
Primer
The law is capable of becoming an instrument of partisan purpose, to be utilized as a weapon by political factions and governments to protect their own – and their allies – vested interests (at the expense of others), and to strike at their opponents.[129]
We have seen that governments and politicians across the world can and will politicize and exert partisan political pressure on the judiciary – including attacking, removing and imprisoning judges; ignoring or bypassing the courts; and politicizing the judicial appointment process – to undermine judicial independence and ultimately the rule of law.[130] Attacking an independent judiciary, and bringing it under the direct influence or bidding of a political party or the executive branch of government is one of the first moves of autocratic leaning regimes that do not respect the rule of law: think Putin’s Russia, Viktor Orban’s Hungary, Erdogan’s Turkey, Duda’s Poland, Maduro’s Venezuela, and going back in history Pinochet’s Chile (1973-1990), and Hitler’s Germany (1933-1945). These are the easy cases to identify.[131]
They are not nominating fair, unbiased judges based on their legal ability. They are appointing movement lawyers to achieve specific policy objectives through the court system.
– All the president’s judges, The Guardian[132]
Unfortunately, even across historically democratic Western countries the rule of law appears to be under attack, particularly in increasingly hyper-partisan jurisdictions with win-at-any-costs political leaders looking to pursue their narrow interests[133]– fixated with holding or obtaining power as opposed to the public interest and playing by the rules – by tapping into popular resentments, cultural and political polarization, and social and economic insecurities (i.e. social and economic inequality, shrinking middle class, burgeoning fourth industrial revolution). But perhaps “the most common trait” for the “autocratization of democracies” is the “growing appeal to populist and nationalist sentiment” as trust in democratic institutions has declined.[134]
One of the first indications that a nation is becoming less democratic is that it becomes more polarized. We see this happening in the United States. Owing in large part to gerrymandering, upwards of 90% of U.S. representatives are reelected. The only real threat they face is from within their own party, a dynamic that drives them to take increasingly extreme positions. Few lawmakers have any incentive to compromise.
– Harvard Business Review[135]
This includes most recently the hyper-partisan political actors within the United States and the United Kingdom and elsewhere, where economic and cultural “tribal warfare” – partisan ‘zero-sum’ ideology (that is disconnected from the wider society)[136] – appears to be replacing “a respect for basic democratic values”.[137] And the 2019 WJP Rule of Law Index scores show that more countries declined (including the U.S., the UK, India, Poland, Hungary, etc.) than improved in overall rule of law performance for the second year in a row, continuing a negative slide toward weaker rule of law around the world:[138]
“In a sign suggesting rising authoritarianism, the factor score for ‘Constraints on Government Powers’ declined in more countries than any other factor worldwide over the last year (61 countries declined, 23 stayed the same, 29 improved). This factor measures the extent to which, in practice, those who govern are bound by governmental and non-governmental checks such as an independent judiciary, a free press, the ability of legislatures to apply oversight, and more. …
The second largest decline over last year was seen in the area of ‘Criminal Justice,’ followed by ‘Open Government’ and ‘Fundamental Rights’.”
Trust is one of those ingredients in a democratic process that is hard to notice until it is gone. But [the UK] government’s cavalier approach to applying the rule of law at the best of times – … the prime minister misled the Queen and illegally prorogued parliament [and repeatedly attacked the judiciary] – does not inspire confidence at a time of crisis.
– The Guardian[139]
The current illiberal tendencies currently on display in the U.S. and India, for example, “offer some insight into what a democracy in autocratic transition might look like. As the leaders of the world’s two largest democracies, their apparent shared disregard for norms, disdain for dissent (from the independent media and elsewhere), and dedication to strengthening their own executive power at the expense of state institutions designed to curb it” – in particular an independent judiciary and the rule of law – “have made them emblematic of the democratic deterioration that has been taking place in recent years”.[140]
In today’s hyper-partisan and polarized times there appears to be an expectation that political parties and leaders, “when given the opportunity”, will “try to stack the court with politically favourable judges”.[141] Such conduct may arise from a President, a Prime Minister, or the strategy of a political party within a Senate or a legislature wishing to avoid checks on their power and vested interests.[142] Across democratic jurisdictions there is a continuum of tactics (from personal attacks to ignoring or bypassing the courts to increasingly politicized judicial appointment processes[143]) aimed at undermining judicial independence – motivated by ideology, politics and/or preferred policy outcomes rather than the rule of law.[144]
Given such motivation – and resistance to democratic and societal norms – hyper-partisan governments and political parties may push for judicial appointments on the basis of clientelist and political ties and ideological predisposition, rather than the required “apolitical” factors of professional competence, legal qualifications, experience, character,[145] and “representational effectiveness”.[146] In this “partisan era of judicial politics” the process becomes quite transactional – with no sense of stewardship for their country and citizens, no obligation to the future.[147]
The partisanship behind judicial nominations reflects the increasing polarization of some nation’s politics and culture. As political parties lose moderate members, their standards for judges become more rigidly ideological, increasingly threatening the legitimacy of the judiciary and the courts,[148] and pushing even their nation’s highest courts in a politically and ideologically defined direction, raising the prospect of increasing polarization and partisanship within the Courts themselves.[149] A most recent example arose earlier this year as District Court Judge Lynn Adelman criticized the five conservative justices on the U.S. Supreme Court in an article published in the Harvard Law & Policy Review:[150]
“By now, it is a truism that Chief Justice John Roberts’ statement to the Senate Judiciary Committee that a Supreme Court justice’s role is the passive one of a neutral baseball “umpire who [merely] calls the balls and strikes” was a masterpiece of disingenuousness. … Rather, the Court’s hard right majority is actively participating in undermining American democracy. Indeed, the Roberts Court has contributed to insuring that the political system in the United States pays little attention to ordinary Americans and responds only to the wishes of a relatively small number of powerful corporations and individuals. …
We are thus in a new and arguably dangerous phase in American history. Democracy is inherently fragile, and it is even more so when government eschews policies that benefit all classes of Americans. We desperately need public officials who will work to revitalize our democratic republic. Unfortunately, the conservative Justices on the Roberts Court are not among them.”
Lady Hale warns government against US-style ‘politicisation’ of court appointments. The outgoing president of the [UK] Supreme Court has warned against any attempt by the government to ‘politicise’ the appointment of judges. … We do not want to turn into the Supreme Court of the United States … in process of appointments.
– Lady Hale, former president of the UK Supreme Court[151]
There is an isolation from the community, a disconnect from the wider society and contemporary values that significantly impacts on public confidence, trust and acceptance from some or even many sections of the country.[152]
According to the Globe and Mail, Canada’s national ‘newspaper of record’, at one time the U.S. Supreme Court was the one branch of co-equal government “that maintained a good degree of credibility”, but now “owing to the duplicitous work of politicians, it is losing that distinction”.[153] In this respect, the Chief Justice of the Supreme Court of Canada had this to say earlier this year:[154]
“’While the scales of justice may tip to one side or another, the scales of democracy must not,’ Chief Justice Richard Wagner said in his remarks to the annual general meeting of the [Canadian Bar Association] on Wednesday, February 19. …
‘We live in troubled times,’ he said. ‘The rule of law and judicial independence are under threat around the world. Just look at what is happening South of our border [in the United States].’
‘Once judicial independence begins to erode, even just a little, the danger is that the whole edifice may eventually crumble’.”
The most recent concern in the U.S. involved the coronavirus pandemic and “an election in Wisconsin where the Supreme Court required that in-person voting proceed despite the health risks and the fact that many who requested absentee ballots never got them”. Why is this a concern for democracy and the rule of law? According to legal experts and commentators, because it shows how democracy and judicial independence has been undermined:[155]
“The pandemic will eventually end; the economy will eventually recover. But democracy, once lost, may never come back. And we’re much closer to losing our democracy than many people realize.
To see how a modern democracy can die, look at events in Europe, especially Hungary, over the past decade.
What happened in Hungary, beginning in 2011, was that Fidesz, the nation’s white nationalist ruling party, took advantage of its position to rig the electoral system, effectively making its rule permanent. Then it further consolidated its control, using political power to reward friendly businesses while punishing critics, and moved to suppress independent news media.
Until recently, it seemed as if Viktor Orban, Hungary’s de facto dictator, might stop with soft authoritarianism, presiding over a regime that preserved some of the outward forms of democracy, neutralizing and punishing opposition without actually making criticism illegal. But now his government has used the coronavirus as an excuse to abandon even the pretense of constitutional government, giving Orban the power to rule by decree.
If you say that something similar can’t happen here, you’re hopelessly naïve. In fact, it’s already happening here, especially at the state level. Wisconsin, in particular, is well on its way toward becoming Hungary on Lake Michigan, as Republicans seek a permanent lock on power.
The story so far: Back in 2018, Wisconsin’s electorate voted strongly for Democratic control. Voters chose a Democratic governor, and gave 53 percent of their support to Democratic candidates for the State Assembly. But the state is so heavily gerrymandered that despite this popular-vote majority, Democrats got only 36 percent of the Assembly’s seats.
And far from trying to reach some accommodation with the governor-elect, Republicans moved to effectively emasculate him, drastically reducing the powers of his office.
Then came Tuesday’s election. In normal times most attention would have been focused on the Democratic primary — although that became a moot point when Bernie Sanders suspended his campaign. But a seat on the State Supreme Court was also at stake.
Yet Wisconsin, like most of the country, is under a stay-at-home order. So why did Republican legislators, eventually backed by the Republican appointees to the U.S. Supreme Court, insist on holding an election as if the situation were normal?
The answer is that the state shutdown had a much more severe impact on voting in Democratic-leaning urban areas, where a great majority of polling places were closed, than in rural or suburban areas. So the state G.O.P. was nakedly exploiting a pandemic to disenfranchise those likely to vote against it.
What we saw in Wisconsin, in short, was a state party doing whatever it takes to cling to power even if a majority of voters want it out — and a partisan bloc on the Supreme Court backing its efforts. Donald Trump, as usual, said the quiet part out loud: If we expand early voting and voting by mail, ‘you’d never have a Republican elected in this country again’.
Does anyone seriously doubt that something similar could happen, very soon, at a national level? … So that’s why what just happened in Wisconsin scares me more than either disease or depression. For it shows that one of our two major parties simply doesn’t believe in democracy. Authoritarian rule may be just around the corner.”
Legal experts have noted that “the stark divisions in the” U.S. Supreme Court’s “rulings did not bode well for faith in the rule of law and American democracy”[156] – but, the conservative block’s ruling may have inadvertently performed an act of public service, educating the country’s citizens that the fundamental democratic right to vote is “everyone’s fight” and motivating voters to step forward in the face of apparent “vote suppression” political forces.[157]
When it comes to judicial independence and the rule of law, “justice should not only be done but should manifestly and undoubtedly be seen to be done”.[158] Indeed, the U.S. Supreme Court 5-4 split decision is a dismal sign for a non-partisan and apolitical judiciary, and a warning for Western democracies across the world.[159]
The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move. … The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law. … An undesirable consequence of the court’s partisan divide, is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes.
– Adam Liptak, The Polarized Court, New York Times[160]
Rule by Law versus Rule of Law
There is a growing body of evidence depicting stress cracks in the rule of law[161] – with one commentator suggesting “the rule of law” is “like a suspension bridge, still upright, but with cables snapping one by one”.[162]
A common feature of both democracy and the rule of law is that a purely institutional approach does not say anything about actual outcomes of processes and procedures, even if the latter are formally correct. For indeed, what do we have if the rule of law is purposely limited to just a formalistic and legalistic approach (i.e. form over substance, promoting democracy for a particular political party’s own supporters while oppressing others)?
When addressing the rule of law and democracy nexus, a fundamental distinction has to be drawn between ‘rule by law’ – whereby law is an instrument of government and the government and the powerful are considered above the law – and ‘rule of law’ – which implies that everyone in society is bound by the law, including the government and the powerful. Its roots can be found in classical antiquity, and is an internationally accepted standard forming the foundation upon which the United Nations is built. In Western society, essentially, constitutional limits on power – a key feature of democracy – require adherence to the rule of law.[163]
In countries across the world, the rule of law is under threat. In Hong Kong, Turkey, Hungary and Poland. … The latest World Justice Project Rule of Law Index shows that a majority of countries worldwide saw their scores decline … Overall, more countries’ rule of law score declined than improved. … Even mature democracies, such as the UK and United States, that were architects of the international rules-based order, have seen their rating drop.
– Sharon Thiruchelvam[164]
What do we have if the legal process – in particular trials – are not real trials but rather merely the appearance of a trial? What do we call it if there is a different legal system for the powerful elite and corporations (i.e. those that have the most political, economic, or other social power and resources) than for other citizens?[165] What do we have if one is better off in a justice system if they are wealthy and guilty than if they are financially limited and innocent?[166] What do we call it if there is “preordained verdict” for one class of people over another – the outcome of the trial is established before the trial takes place (or never in fact takes place) and is not in accordance with the law based on evidence?[167] What do we call it when some judges are not independent and impartial, and permitted to hide their bias under complex legal language and obscure legal history, presenting the face of an impartial umpire but actually fixing the game based on partisanship, patronage or corruption?[168] What do we call it when unilateral contracts of adhesion can effectively strong-arm and derogate the most fundamental rights of most citizens (consumers, employees, etc.), including the right of access to the court system, to create a favourable legal environment for the powerful?[169]
Are hyper-partisan jurisdictions moving towards market justice where the rule of law depends on the size of your bank balance and political influence? What do we call it where an emphasis on “procedural fairness” masks the underlying substantive unfairness in outcome? Proscribed rules of procedure, with a putative emphasis on ‘fairness’, means little where the powerful – political, economic, or social – have vastly different resources perpetuating existing power structures and results.[170]
One need only “open your newspaper” to read about countries – societies in formerly strong Western nations – where the rule of law and the justice system looks to be faltering. Equality before the law, justice for all, fails in an unequal society and where judicial independence is eroded “little by little, by small, seemingly innocuous changes”[171] to the point that political parties force the highest courts to become partisan traps[172]:[173]
“Democracy no longer ends with a bang, but with a whimper: the slow, steady weakening of critical institutions and the gradual erosion of long-standing political norms.”
And once lost, justice and a peaceful society is difficult to reinstate.[174]
The justice system is premised on the notion that rich and poor are treated equally. But today, access to justice is based on how much a person can pay. People who are poor are systemically treated worse than the wealthy.
– Equal Justice Under the Law[175]
The alternative to the rule of law is the “defective” and “corrupting” power “of money, influence and guns”.[176] History shows that public opinion may be easily swayed given the right (or wrong) circumstances, and principles that are valued highly today may become objects of attack by hyper-partisan and authoritarian leaning political leaders and elements of the public[177] – and we are seeing these issues in many countries across Western society, including the U.S.,[178] the UK,[179] parts of the EU (i.e. Poland, Hungary, Turkey),[180] India,[181] and even to a lesser extent Australia[182] and Canada.[183]
Why has it been so easy for certain political leaders and parties to undermine and destabilize the constitutional values and institutions associated with the rule of law? Another way of asking the question is: why have Jarosław Kaczyński (Poland) and Viktor Orbán (Hungary) found so apparently easy what hyper-political actors in the U.S. and UK, whose power and ambitions are not small and whose motivations appear similar, find more difficult: to overwhelm and take over ostensibly those independent institutions that many had hoped would to be able to keep power in check?[184] There are many reasons for this, some of which I have discussed elsewhere[185]:[186]
“To resist erosion of the rule of law we have to understand the challenge clearly. Populism takes hold where it successfully engages “the people” in a narrative that contests the rule of law ideal, an ideal which is premised on the notion of an independent judiciary deciding without fear or favour. Populists are most likely to do this when judges stand in the way of authoritarian power. And their strategy is working all over the world. Hard Brexiteers in the UK are learning from Poland, Hungary, Turkey, Russia and the US that a declining public devotion to the rule of law can make it relatively easy to weaken the system to give greater freedom to authoritarians.
The fight to stem the tide of authoritarianism depends on establishing a defence of the rule of law which has real purchase on the public imagination. This narrative must be capable of persuading the broader public of the essential value of constitutionalism. If we fail to establish this counter-narrative, liberal democracy as a whole is threatened.”
On both sides of the Atlantic [in the U.S. and the UK], the durability of the rule of law is being tested more and more intensely. … Today the rule of law is not holding political leaders to account. … Things are not as they used to be. Authoritative statements by esteemed officials that the rule of law has been violated no longer have immediate or obvious political consequences.
– Jeffrey Meyers, The Conversation[187]
How Democracies Unravel
Economic Inequality and Social/Cultural
For not the first time in geopolitics, “among us today a concentration of private power without equal in history is growing”,[188] with many companies larger economic entities (with potentially greater influence) than the countries in which they operate.[189] Twenty-six of the world’s richest individuals own as much as the poorest fifty percent.[190] But perhaps more than anything else today, the influx into second homes has ignited more anger over what the global pandemic is laying bare every day: the ever widening gap between the rich and the poor.[191]
In this environment the political influence of the corporate and financial elite continues to undermine the world’s political and government systems,[192] introducing private interests where only the public interest – the common good that benefits society as a world – should be considered. In the U.S. alone “millionaires and billionaires are set to reap more than 80% of the benefits from a change to the tax law” politicians “put in the coronavirus economic relief package, according to a non-partisan congressional committee”.[193] Too often ‘big money’ appears to call the shots, with politicians across the spectrum frequently guilty of unduly favouring the demands of their ‘big money’ corporate and financially elite donors over the needs of their constituents:[194]
“Do you begin to see how popular fury might build? … Big business trampling over all who might challenge it. It’s not a recipe for social peace. … If you need a one-line explanation for populism, this is the best there is. … Yet again, vast amounts of public money are being committed, but instead of stagnation we face catastrophe. Nervous commentators reference how the Great Depression of the 1930s fuelled nazism and communism, as [the Global Financial Crisis of] 2008 fuelled populism, and dread what awaits us [from the 2020 Global Pandemic]. … Our future depends not only on the work of scientists but on the efforts of governments to stop democracy turning into a swindle. … If, as seems likely, the government moves from subsidising wages to direct loans to big business, the first question must be what do taxpayers, employees and wider society gain in return.”
Economic inequality[195] and economic and social insecurity – resulting in a two-tier economy where the 1% have gotten $21 trillion richer since 1989, but the bottom 50% have gotten poorer[196] – causes social and economic instability, with the power to dramatically reshape our democracies[197] and rule of law as the middle and working class are left behind to struggle with economic distress.[198]
The appeal of populism and/or authoritarianism has grown with mounting public discontent with the status quo, exposing existing fissures within society based on this economic strain, cultural backlash, or both. It also highlights a lack of representation in the political system.[199]
[V]oter concern over the nation’s soaring economic inequality has ascended to top-tier status. A January poll by the Pew Research Center found that 70% of Americans believe the economy unfairly favors the powerful. … More than 40% of the U.S. population — 135 million people — qualify as poor or low-income. All on its own, this staggering number is a sobering indictment of the economic status quo.
– Los Angeles Times[200]
Democratic theory assumes a society of free, equal, and autonomous individuals – within this theoretical construct money is supposed to be irrelevant to one’s standing and, more importantly, everyone has the same potential to influence what government does.[201]
However, in reality, in every political system, even a democracy, the rich tend to hold more political power and “access to justice”. The danger is that this political power will be used to promote policies and laws that further cement the economic power of corporations and the wealthy elite. The higher the inequality, the more likely we are to move away from democracy and the rule of law. In some Western countries we are clearly seeing an erosion in democracy in that elected representatives no longer represent all people equally. Rather there is greater responsiveness to those with resources (i.e. corporations and the financial elite), especially those contributing to political campaigns. Increasingly those without resources find themselves frozen out. As democracies and the rule of law become more fragile, and government “big-money influenced” policy begets further economic inequality (by redistributing money upward), the response is unrest and movement away from the historical political elite unable or unwilling to address the economic conditions. And middle and working-class voters are looking for political leaders who can address the economic conditions (or at least promise to shake things up)[202]:[203]
“The questions of populism would have little urgency were it not for the widespread agreement about the shortcomings of the political status quo: about the abyss between the shining ideals of equality and responsive government implied by our talk about democracy and the tarnished reality of life on the ground. The notion that ‘the people’ are being poorly served by politics has vast resonance across the political spectrum, and for good reason.”
The extreme politicization of the judicial nomination process has already begun to erode the rule of law in the US. Perhaps the most egregious example of this is the Supreme Court’s 5-4 vote in the infamous Citizens United ruling, which invalidated parts of a federal law that had imposed limits on corporate money in politics. The ruling allows corporations to spend unlimited amounts of money … to influence our elected officials and shape their legislative agenda.
– Joel Koerner, The Rule of Law, Wealth Inequality[204]
Economic growth does not seem to be translating into better living standards for everyone in an era of ‘big money’ influence over party politics and government. And the increased influence of corporations and the wealthy elite over the party system and economy “can contribute to explain rising inequality and lack of democratic response to it, as well as the rise in populism” that has “rocked the political establishments of many countries”.[205]
Markets, profits and capital are societal constructs that depend on choices, in particular government policy choices. In this environment it can appear that traditional political parties in Western society are not effectively representing the middle and working classes.[206] Policy choices do matter. As a result of the loss of trust in the pre-existing political and economic systems – and the consequent economic inequality that appears to be “more corrosive with each passing year”[207] – we have the rise of populists and authoritarians who champion illiberal democracy:[208]
“In a system of multiple elites, no major party has a strong incentive for ensuring that growth is inclusive. And without political action, inequality is likely to persist or even worsen. Those left behind may find themselves underrepresented by mainstream parties, and are more likely to seek out alternatives.”
[P]opulism arises in part from the ‘broken promises’ of democracy itself. … [T]he perceived deficits and failures of liberal democracy to represent an adequate range of interests have been a significant spur to populism.
– Professor Nicola Lacey, London School of Economics and Political Science[209]
Thanks in large part to the persistent failure of governments across the west to enact a credible vision of shared prosperity and security, “we are now living through a time when familiar webs connecting citizens, ideologies and political parties are, if not falling apart, at least beginning to loosen and shift”. As a result, the question of economic and social inequality (i.e. static incomes, precarious jobs, sense of national decline) must be addressed in conjunction with populism and authoritarian leaning political leaders as their impact on democracy and the rule of law is not going away. According to some commentators– despite the fact that attacks on the establishment are not always rational or fair, and may fail to do justice to accomplishments of the recent past[210] – the reason for this is:[211]
“Because … it is inevitable that populist movements will come into conflict with the liberal aspects of liberal democracy.
If all ‘real’ people think the same way about the things that matter most in politics, then the idea of institutional protections for a dissenting minority are at best superfluous and at worst nefarious. For the populists, they are just another wall that the corrupt elite has built to keep real power away from the people. The same is true for the independence of judges or regulators, or checks and balances between branches of government – especially when they appear to stymie the plans of a populist leader. In this account, the most basic elements of liberal democracy become both kindling and fuel for the populist fire.”
To a large extent this is because the trust and legitimacy of institutions, and the way many people have known them, has eroded. Many citizens “feel their voices are not being heard”.[212]
Solutions are needed to restore the legitimacy of decision making: “that this issue is increasingly being discussed is a good thing – because the risk of sticking to the status quo is that populists, everywhere, will continue to thrive”.[213]
A wave of populism is sweeping across the advanced democracies in the northern hemisphere. Though in different forms and to different degrees, populism has begun to shape the political life of established democracies including the United States, the United Kingdom, France, Germany, Austria, the Netherlands, Sweden, Greece, Italy, as well as, perhaps most spectacularly in Europe, the more recent democracies of Hungary and Poland.
– Populism and the Rule of Law[214]
Hijacking Democracy’s Referees
The rule of law not only constrains but enables government power, and populist governments – read authoritarian leaning political leaders and parties – need law as much as any other regime, although it may become ‘rule by law’ (with thin rule of law characteristics at best) without the appropriate supporting culture[215]:[216]
“Party systems have long seemed frozen; now, authoritarian populists are on the rise around the world, from America to Europe, and from Asia to Australia. …
When democracy is stable, it is in good part because all major political actors are willing to adhere to the basic rules of the democratic game most of the time. … ‘For democracies to work,’ Michael Ignatieff, the political theorist and former leader of the Liberal party of Canada, wrote a few years ago, ‘politicians need to respect the difference between an enemy and an adversary. An adversary is someone you want to defeat. An enemy is someone you have to destroy’.
In the US, and many other countries around the world, that is no longer how democratic politics works. As Ignatieff put the point, we are increasingly ‘seeing what happens when a politics of enemies supplants a politics of adversaries’. And the new crop of populists who have stormed the political stage over the past decades shoulder a lot of the blame for this.”
Most populist and authoritarian leaders, once they have secured some power, “are indifferent to checks and balances” – repealing or subverting institutions that might restrain their influence – and exasperate divisions between groups to maintain a large support base through clientelism. Populists and authoritarian leaders seek to strip or suppress important pillars of democracy — judicial independence (rule of law), political rights of disadvantaged groups (i.e. right to vote),[217] and press freedom — from their positions of power to secure these outcomes[218]:[219]
“Hence courts and other checking institutions need to be co-opted – as they may be by court-packing, intimidation of the judiciary or other mechanisms such as those we have recently seen deployed in Poland and Hungary. And once institutions such as the judiciary have been commandeered or co-opted, we see what scholars have called, variously, forms of ‘abusive constitutionalism’ or ‘discriminatory’ or ‘autocratic legalism’ in which the law itself is used to persecute minorities, to punish dissent, and to enforce executive power discursively legitimized as the people’s will. This can take the form of not only a corrupting politicization of the law and the judiciary but also of a ‘judicialisation of politics,’ where the courts or other legal processes … are used for political purposes. For not only adherents of substantive, thick conceptions of the rule of law but also those who take a functional view of the rule of law as inherently concerned with tempering power, this amounts to a corruption of the rule of law: what we might call rule by law rather than the rule of law, albeit that the specific form which that subversion takes will vary across time and place. …
Populist attitudes are … impatient of constraints. And … populism is currently creating significant risks to the rule of law in Europe and the United States.”
What defines competitive authoritarian states? They are ‘civilian regimes in which formal democratic institutions exist and are widely viewed as the primary means of gaining power, but in which incumbents’ abuse of the state places them at a significant advantage vis-à-vis their opponents.’ Sound like anyone you know?
– Michael Tomasky, New York Times[220]
Two Harvard University professors, Steven Levitsky and Daniel Ziblatt, have spent their careers studying how democracies have unraveled, from Germany in the 1930s to Venezuela in the 2000s.[221] In most cases since the end of the Cold War, political authoritarians simply hijack democracy’s “referees” — the courts[222] (by the politicization of judicial appointments, verbal personal attacks undermining the public’s confidence in the courts,[223] as well as privatization of the justice system by mandatory arbitration clauses),[224] law enforcement,[225] intelligence, tax,[226] and regulatory agencies[227] — to crush or silence opponents and then rewrite the rules of the game in their favour.[228] Western society will see the rule of law, impartiality and democratic norms politicized and corroded in their own societies if it becomes normalized that the courts (court capture)[229] and regulatory bodies (regulatory capture)[230] and justice departments / ministries[231] and presidential pardons (as a reward and enabler of criminality – a Get Out of Jail Free card – for friends, billionaires, white collar criminals, politicians and public officials convicted of corruption, and political allies)[232] are ‘nakedly political’, packed and forgiving – if not supportive – of a regime’s political pathway, preferences and/or affiliations and its allies (plutocracy and crony capitalism “in a Brooks Brothers suit” and economic capture[233]). And when the independent media – the critical part of the set of checks and balances within our society – is captured by those they are supposed to oversee (i.e. government, corporations, financial elite, monopolistic agenda based owners), they cannot or will not perform their critical societal role of “objectively and accurately informing the public”.[234]
Through his pardons, both military and civilian, he’s sending a clear message: If you’re on his side, as former Navy Secretary Spencer put it, ‘You can get away with things’. … He has done his utmost to make the administration of justice an instrument to reward his friends and harass his adversaries.
– Los Angeles Times, [President] Trump’s War on the Rule of Law[235]
Too often, debates over a democracy’s ostensible decline do not acknowledge more gradual forms of democratic setbacks – in particular long term public trust deficits in our institutions (government, business, NGOs, media, the Courts)[236] that hollow out democratic elections, judicial independence and a free press.[237] These are the harder cases to appreciate – the slippery slope principle that may lead to autocratic or oligarchic managed democracies – that may happen within advanced 21st Century societies, including the U.S., the UK, Australia, the EU, and yes – even Canada.[238]
And in these type of jurisdictions the courts may be perceived to be motivated by (or succumbing to) the policy preferences of the government, as opposed to an independent judicial analysis of the particular issue(s) – and maintaining and enforcing the rule of law.[239] Politicizing the judiciary – which includes political ideology and partisanship, polarization and the influence of big-money – impairs the quality of the bench.[240] Outside of an outright assault on the judiciary, politicization can be understood as (a) politicians verbally attacking and undermining the independence and credibility of specific judges or the judiciary as a whole (in respect to court decisions they do not like), as well as (b) a judicial selection or appointment process (including uniquely American judicial elections at the State level)[241] that elevates a partisan candidate on the basis of partisan or private interests, as opposed to a candidate based solely on the neutral “apolitical” factors of professional competence, experience, character, and representational effectiveness.[242] Both political strategies undermine public confidence in judges and the nation’s courts.
Judges appointed by way of a process that includes political strategizing … compromises the perceived independence of the judiciary. It suggests government itself does not believe that appointees graduate out of their political persuasions and results in an appointment process that is cynical of judicial independence.
– Globe and Mail[243]
Today, there is a growing consensus that this political methodology in hyper-partisan jurisdictions is rapidly becoming one of democracy’s biggest threats, although the scale and impact of its corrosive effects have yet to be fully assessed.[244] A benefit of controlling a modern state is more about undermining the rule of law (thin versus thick), democratic norms, ensuring “the power to protect the guilty” (i.e. redefine laws, corruption and fraud to exploit people and natural resources of own territory, nepotism, gerrymandering, dark money, voter suppression, politicized judicial appointments, etc.),[245] and maintaining the ‘white collar paradox:[246]
“The conservative [U.S.] Supreme Court’s soft spot for white-collar defendants is part of a larger phenomenon: … on one legal doctrine after another, it has expanded the rights of wealthy individuals and corporations.
In 2010, in Citizens United v. F.E.C., it took the radical step of saying that corporations have the same right to spend money to elect candidates as people do.
By striking down campaign finance limits, the Court has given wealthy people and corporations more power than ever over government. In the last decade, wealthy donors have spent more than $3 billion on super-PACs, and a single couple … gave nearly $300 million, according to … a new Public Citizen report. These super-donors use their contributions to extract government policies that enrich them further, including lower taxes on the wealthy. It is no coincidence that, as campaign contributions and spending have soared, the 400 riches U.S. families paid lower taxes in 2018 than the middle class. The freedom to spend unlimited amounts of money also gives the very wealthy the ability to promote their favorite social policies on a mass scale ….
In a series of rulings … it has made it far harder for workers and consumers to band together in class action lawsuits, which are often the only way for working-class people to get justice. … The Court has also decided that the Due Process Clause bars what it views as excessively large punitive damage awards. It then used that made-up doctrine to drastically reduce jury awards against [large corporations].”
Corruption – “such as influence peddling, nepotism, creative tax avoidance, and regulatory capture – not only remain legal, they have broadly been accepted as the standard corporate playbook. Awareness of these shadowy tactics” and normalization of deviance “has grown, though, and with it, public anger”. Today, it is becoming more “clear just how much money is deployed by corporations” and the financial elite “to block legislation that might serve the public interest”.[247]
By a 5–4 Vote, SCOTUS lets Wisconsin throw out tens of thousands of ballots. The conservative majority just approved one of the most brazen acts of voter suppression in modern times. … [E]xpoit[ing] the pandemic to suppress Democratic votes … [t]his election looks increasingly like a sham tainted by partisan manipulation.
– Mark Joseph Stern[248]
The damage done by unprincipled and unethical political leadership can be devastating to the rule of law and society. Principled leadership is essential in today’s environment.[249]
And on an institutional level in the U.S., judicial appointments and “the longstanding, historical notion of the judge – as an independent, non-partisan interpreter of the law, rather than a political member of a super-legislature – may never truly recover”.[250] We are moving forward into concrete situations in which the judiciary in certain Western countries across the world are faced with a legislature and an executive that appears to be consciously and systematically discarding the ideals of the rule of law – “and the perception that justice depends on one’s political”, economic or other social influence or “standing will be hard to roll back”.[251]
There is increasing evidence of ‘rule of law backsliding’ in the EU in the past decade. By ‘rule of law backsliding’ we mean ‘the process through which elected public authorities deliberately implement governmental blueprints which aim to systematically weaken, annihilate or capture internal checks on power with the view of dismantling the liberal democratic state and entrenching the long-term rule of the dominant party’.
– Policy Brief: Professor Laurent Pech and Professor Dimitry Kochenov[252]
Solutions
What is to be done?
As ‘big-money’ politics deepens and partisan lines are “increasingly drawn along identitarian lines” (political tribalism), there is more impetus to denigrate political opponents than to uncover tenable solutions to our most critical problems. In polarized “big money” politics, everyone cheers for their own side, and we all lose as these elements create a toxic brew:[253]
“These developments are not only harmful to judicial independence, but also threaten to move us even further toward a judicial system that caters to the interests of wealthy individuals and corporations, while ignoring the needs of ordinary citizens, especially those at the bottom of the socioeconomic ladder. In sum, we face the risk of a judicial system that even more closely resembles our current pay-to-play political system.”
National and global problems require unified responses, yet it seems less likely that governments and political parties will be able to effectively govern collectively, let alone collaboratively.[254] Without a social structure that supports tolerance, a basic level of trust, and a spirit of community, political institutions become hollow. Government becomes less efficient, less effective, and less responsive to the public interest. [255]
Our country today, and indeed much of the world, is run by and for billionaires [and corporations] actively manipulating the political process. They have the means, power, influence and muscle to get their way.
– Jeffrey Sachs, Professor and Economist, Columbia University’s School of International and Public Affairs[256]
The smarter alternative for society is to be bipartisan or even nonpartisan, to put aside factional differences and do what is right for everyone: to demonstrate and act in the public interest, taking the serious problems citizens face with a view to effect real change. This will require a transparent “discussion of public policy”, economic and taxation policy that promotes inclusive growth, “judicial independence, the rising role of ‘big money’/’dark money’ influence in politics and government, the concentration of economic and political power in the hands of a small financial elite, cultural and political polarization, campaign finance reform, and ‘apolitical’ reform of the judicial appointment process”.[257]
Without a sense of national cohesion, shared identity and common purpose, the fabric of our society will continue to fray.[258] It is clear that democratic societies across the world need representative government and policy changes that give their citizens hope for a better future, support democratic values and uphold the rule of law:[259]
- As the sources of the attacks on the rule of law appears to be mainly driven by growing economic inequality and loss of social mobility, a key is to articulate coherent government policy that addresses inclusive growth and sufficient social safety nets that improves well-being across all demographic lines and geography, including the daily lives of middle and working-class citizens (i.e. fiscal reforms re redistributive progressive taxation, social services including education and training programs, housing, health care, day care, public transport, etc.). Economically, government policy must “find a path to growth that is inclusive and benefits everyone, not just the wealthiest 1 percent or the .01 percent” – policy that allows the economic elite to commandeer the lion’s share of gains is a formula for endless conflict”. Appropriate economic policy that promotes inclusive growth, jobs and wages, pensions, and social inclusion is in the public interest, and removes the fuel driving the politics of division and populism.[260] Controlling the terms of the economic and tax policy debate in the face of ‘big money’ political influence, and then advancing from debate to action may well be the toughest challenge for governments and businesses around the world. In solving this problem, one cannot underestimate the power wielded by those who wish to continue to be the economic beneficiaries of politically-inspired inequality.[261]
- There must be a return to deliberative, participatory institutions that bring citizens fully into the process of governing (including political agendas and courses of action).[262] Governments must address the corrupting role of “big money” in political party financing and the undue influence it exerts on Western political and economic systems.[263] There is a need for transparent and inclusive political party and electoral financing: “How can we make people feel they are truly included when the financing of political parties depends on major billionaire donors and clandestine foreign sources, and when one needs to be well-off to engage in politics?”[264] Could business cooperate with government “to support democratic reform”? A hopeful sign is that “one survey found that nearly 70% of executives were concerned about the status of democracy and more than half believed that business leaders have a responsibility to fix it”.[265]
- A new strategy also requires a narrative that “emotionalizes and unites” a country, a society. Democratic countries need to find ways to strengthen trust and national pride in “inclusion” as a country’s condition for success. There needs to be a long-term vision outlining where a country wants to be in 10 years, 15 years and onward. This type of vision must include an interconnection with economic and social policies: “which jobs can be created, which specialisations by industry are feasible and advantageous, and which abilities and education levels for the young can be attained. The vision should specify which public services are to be provided and how living conditions can be improved. Performance should be judged based on sustainable development goals. The vision should be ambitious but within reach, shared by citizens and developed jointly with experts and political parties”.[266]
- There needs to be appropriate leadership and policy to provide, protect and strengthen the “essential pillars of genuinely free and fair capitalism” (otherwise we have ‘big money’ influenced crony capitalism that rigs the game in the favour of a corporate and financial elite).[267] In particular: (a) an independent and impartial justice system supporting the rule of law; (b) prices that reflect true costs; (c) real competition; (d) fair progressive taxation policy;[268] and (d) freedom of opportunity. In practice, “the power of the market is most reliably balanced by the power of the government, and governments is best kept in check by a thriving democracy”. Any single entity – whether it’s business or government – can become too powerful in the absence of countervailing power. The result is often an extractive system, one in which institutions concentrate political and economic power in the hands of a powerful corporate and economic elite that unduly influences government policy (and the market) for its own benefit. However, when a country’s major institutions – both economic and political — are inclusive and in balance with one another, society and public policy is more in harmony. Inclusive economic institutions support the effective functioning of a free market, while inclusive political institutions enable everyone to effectively participate and benefit.[269]
- In addition to the three branches of government, there is an unofficial fourth – civil society – which must exert itself. A vigorous reaffirmation of our democratic values and the rule of law is needed. The trust of the people is what is at stake, and the force that can protect society’s embattled public interest.[270] Ultimately responsibility lies with the public, but there is an important role for an independent media to highlight the dangerous trends underway. Public officials committed to the rule of law and inclusive democracy must regularly defend these basic principles.[271] The Chief Justice of the Supreme Court of Canada recently noted that lawyers – as members of the bar and as engaged citizens – have an essential role to play in the public discourse and civic education.[272] The International Bar Association, the global voice of the legal profession, and the American Bar Association have also called upon its members to speak out in support of the Rule of Law within their respective communities.[273]
- A healthy democracy will continue to be undermined if an independent media – the much needed Fourth Estate – does not factually hold government and business to account by “objectively informing the public”. In order for the media to play a watchdog and educational role, it must be independent, particularly from those on whom it is supposed to be reporting (i.e. government, business). Monopolistic concentration of ‘special interest or agenda based’ media ownership[274] – such as billionaire Rupert Murdoch’s partisan right-wing media empire of newspapers and television channels in the U.S., UK and Australia – is a concern and has been described by a former prime minister of Australia as a “cancer eating the heart of … democracy”.[275] Independent journalism is fundamental to the health of a democracy because the monopolistic “concentration within news and information markets” creates “conditions in which wealthy individuals and organisations can amass huge political and economic power and distort the media landscape to suit their interests and personal views”.[276] In light of the alarming concentration of media ownership by oligarchs, the erosion of press protections, and the disinformation spread to discredit independent journalists, democratic countries across the world are facing a global crisis of press freedom. Policy reform may include consideration of one or more of the following topics: regulatory capture; independence of media regulatory authorities; antimonopoly rules promoting the public interest through unconcentrated media markets; diversity of media ownership; transparency of ownership; guarantee of editorial independence; rules on government advertising; promotion of transparently funded public service media; review of non-profit news media and favourable legal and tax status re contribution to democracy; level playing field on internet and social media platforms; support for an independent media and freedom of expression; etc.[277]
In the U.S. and many other countries today, the pillars that have kept the market free and fair are eroding and opaque interest groups and corporate monopolies (consider any of the major tech companies) are gaining political power. Inclusiveness is giving way to extraction. These trends strengthen a narrative of ‘the rich; making out like bandits while … [f]ewer and fewer people believe that their children will be better off than they are.
– Harvard Business Review[278]
Fostering the rule of law and our democratic values protects the foundations of our societies – good government, peace, security, stability and prosperity. At the same time, we are contributing to a more resilient and sustainable country for present and future generations and ensuring that no one is left behind.[279]
All aspects of society have a shared stake in and responsibility to defend and promote the rule of law and democratic values, including Government, the judiciary, the legal profession, business, the independent media and citizens.[280]
We must not only protect democratic rights … That effort requires us to adopt economic democracy – aggressively redistributive policies – that shift resources and power back to the community (for instance, through worker-owned businesses and universal access to adequate social benefits) so that democratic rights aren’t merely hollow and theoretical possibilities, but real and tangible opportunities.
– Maclean’s[281]
Conclusion
Democracy focuses on how societies select those who will hold power, while the rule of law is concerned with how political power, among other things, is exercised. The underlying premise of the rule of law is that every citizen is subject to and accountable under the law, including lawmakers and those in government positions. In this sense, the rule of law encourages governance through democracy created for and by the people, as much as it stands in stark contrast to the concepts of autocracy and plutocracy where those in positions of power and influence conduct their affairs outside and above of the purview of the law.
The rule of law is at the heart of all democratic societies. By strengthening the rule of law (and a properly functioning independent judiciary) we protect the rights of all people, limit the arbitrary exercise of power, and advance inclusiveness, which are the cornerstones of a modern democracy.[282]
Expressed in legal norms the rule of law is crucial for the proper functioning of a democratic society and the policies of a nation. Support for, and the application of, the rule of law strengthens the credibility and unity of a country, nationally and internationally, and directly influences the operating environment of corporations (and financial elite) and the daily lives of citizens. Shortcomings in this area make our societies more vulnerable both internally and externally.[283]
Building democracy and the rule of law may be mutually reinforcing processes. The rule of law is a critical factor for the advancement of democracy, rooted in equal rights and accountability.
– Rule of Law Alliance[284]
In order to maintain trust and accountability in our public institutions the rule of law must be protected: which means the principles of legality, legal certainty, prohibition of arbitrariness of the executive powers, separation of powers, judicial independence, impartiality, and equality before the law must be respected.[285] However, their realization cannot be taken for granted in a time of hyper-partisan ‘big money’ politics that – fixated on obtaining or holding power as opposed to the public interest and playing by the rules – undermine trust in the workings of democracy, the rule of law, and independent judges and others appointed to safeguard the system.[286]
Trust in our institutions, the rule of law, and policymaking in the public interest cannot and will not be maintained if approached as an “all-out war, where victory is paramount, ‘compromise’ is a dirty word, and virtually any issue or development can become a weapon for bludgeoning the other side”. This runs contrary to basic democratic values and is crippling Western society’s culture of democracy.[287] Professor Mason, author of the book Uncivil Agreement, notes:[288]
“As we become more socially distinct as partisans it’s a lot easier to dehumanise the other group … to think of the other side as not only opponents but actually enemies and dangerous. …
If you care only about whether your party wins or loses and you care about nothing else then there is no governing, there is no accountability … The only thing that matters is beating the other side and being winners again.”
This is a genuine concern in these times of economic and political upheaval, but particularly troubling today as the 2020 coronavirus pandemic ravages the world (and authoritarian leaning governments – in particular Hungary, but also some historically strong democratic countries – have taken advantage of the crisis to impose policies long sought on otherwise reluctant citizens). It may be safe to say that we are in uncharted territory.[289] In a March 2020 article addressing the coronavirus pandemic and societies’ “checks and balances”, The Times – a national newspaper in the UK – noted as follows:[290]
“Leaders in even proudly liberal western democracies have amassed powers that could scarcely have been imagined a few weeks ago. Polls suggest that, for the time being, we nearly all support their authoritarianism.
Yet there are concerns that some governments are disinclined to let a good crisis go to waste. The virus has furnished the world’s strongmen with an opportunity to entrench their position well beyond the end of the epidemic by suffocating dissent, cowing opposition parties or suspending constitutional limits on their authority. Some are seizing it openly; others more subtly.”
‘Big money’ political influence of corporations and the financial elite has undercut democracy, appropriated public policy, and undermined the inclusive functioning of the government and market.
It is fair to say that in any system in which governments and the Courts maintain two sets of standards or two books of law – one for cases involving political leaders, the wealthy and their allies, and one for everyone else – is untenable in a nation that values its citizens and the rule of law.[291] Political and government leaders (Presidents, Prime Ministers, Premiers, Governors, etc.) and Attorneys General and other government officials “cannot put their thumbs on the scales of justice for any reason – including to aid friends associates – or we cease to be a nation of laws”.[292] This is simply “raw power detached from any civic or ethical justifications beyond self-preservation”,[293] a partisan normalization of deviance and self-interest grasping for power to sustain their own narrow vested interests at the expense of others.
The weakening of the rule of law and a society’s institutions will not merely wreak havoc on democratic life and Western society, it will change its character. What we expect from ourselves, our institutions and each other will be different on the other side of this if it cannot be corrected.
How do we survive this uncertain time in history? The crisis is preventable. It remains treatable.
Democracy in practice and the administration of justice can be fair, can be effective, can be non-partisan. But it is a battle that “must always be won anew” against ‘big money’ political influence, economic and social inequality, and the self-serving “politics of division”.[294] The role of democratic governments, independent courts and an independent media is crucial, as is the leadership response by institutions like the UN and international and national Bar Associations, and the legal profession.
Canada’s response to the … pandemic stands in marked contrast to that of the United States, and the crisis seems to be helping to unite Canadians like no other event in years. … It is this partisan consensus, seen in our political elites, media and shared by the broad population, that may be the most critical component to a successful response. … We have seen elected officials and journalists both take their responsibility to inform the public seriously, even on social media platforms that can often be sources of polarization.
– CBC News[295]
At the end of the day, a reservoir of trust[296] – respect for the rule of law, support and belief in democracy, faith in each other – can mobilize individual citizens and business leaders to meet collective challenges. Countries that have it may hope to minimize the impact of economic inequality and self-interested partisan polarization, and strengthen the rule of law and democracy. Countries in which it is in short supply may not. Democracies rose to the challenge in the past, and we require no less today.
Eric Sigurdson
Endnotes:
[1] Tom Bingham, The Rule of Law, Allen Lane (UK), 2010; The Rule of Law, Stanford Encyclopedia of Philosophy (plato.stanford.edu), June 22, 2016.
[2] Rosalind Dixon and Julie Suk, Liberal Constitutionalism and Economic Inequality, The University of Chicago Law Review, Vol. 85, Issue 2, 2018.
[3] The Global State of Democracy: Exploring Democracy’s Resilience, International Institute for Democracy and Electoral Assistance (idea.int), November 2017; 2020 Edelman Trust Barometer: Executive Summary, Edelman.com, January 19, 2020; 2020 Edelman Trust Barometer, Edelman.com, January 19, 2020.
[4] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.
[5] Arch Puddington and Tyler Roylance, Freedom in the World 2017: Populists and Autocrats: The Dual Threat to Global Democracy, Freedom House, 2018; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.
[6] Jamie Watt, Populism is alive and well in Canada, Toronto Star, February 16, 2020. Also see, 2020 Edelman Trust Barometer, Edelman.com, January 19, 2020; Lisa Kimmel, On the surface, Canada looks healthy – but don’t be fooled, Globe and Mail, February 20, 2020.
[7] David Moscrop, Can democracy survive the coronavirus?, Maclean’s, April 1, 2020; Partricia Cohen, Straggling in a Good Economy, and Now Struggling in a Crisis, New York Times, April 16, 2020; Max Fisher and Emma Bubola, As Coronavirus Deepens Inequality, Inequality Worsens Its Spread, New York Times, March 15, 2020; Christopher Mackin, Toward an Economic Democracy, The New Republic, March 25, 2020; Coronavirus Will Change the World Permanently. Here’s How, Politico, March 19, 2020; Jamil Smith, Inequality Is Immune to the Coronavirus: Washington’s disaster relief reminds us that not even a pandemic deters the pursuit of plutocracy, Rolling Stone, March 27, 2020. Also see, Zack Friedman, 78% of Workers Live Paycheck to Paycheck, Forbes, January 11, 2019; Susan Milligan, Stretched Thin: The continuing government shutdown highlights the fact that most Americans have little to no savings, U.S. News, January 11, 2019; Robert Reich, Almost 80% of US workers live from paycheck to paycheck. Here’s why, Guardian, July 29, 2018; Maddie Johnson, Majority of Canadians living paycheque to paycheque: survey, Investment Executive, September 30, 2019; Almost half of Canadian Employees living paycheque to paycheque, survey indicates, CBC News, September 6, 2017; Amelia Hill, Seven in 10 UK workers are ‘chronically broke’, study finds, The Guardian, January 25, 2018; Leith van Onselen, Nearly half of Aussies living paycheck to paycheck, MarcoBusiness, August 14, 2019; Brandon Tensley, How coronavirus is deepening American inequality, CNN, April 6, 2020.
[8] Peter Barker, ‘We the people’: the battle to define populism, Guardian, January 10, 2019; Natalie Nougayrede, Across the world, the rule of law is losing out to rule by the mob, Guardian, May 21, 2016.
[9] Jeffrey Sachs, The U.S. Plutocracy’s War on Sustainable Development, Project Syndicate, November 2, 2017; Jeffrey Sachs, America’s Broken Democracy, Project Syndicate, May 31, 2017. Also see, Kevin Loria and Dana Varinsky, The world faces a future of floods, famine, and extreme heat – here’s what it’ll take to bounce back, Business Insider, April 12, 2018; Ian Bailey, Donations taint B.C.’s approval of Trans Mountain pipeline expansion: advocacy group, Globe and Mail, January 31, 2017; Maxwell Cameron, How Big Money Undermined B.C.’s Climate Leadership – and its Democracy, Huffington Post, September 21, 2017.
[10] Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020; Robert Behrer, Decision Costs and Democracy: Trade-offs in institutional design, Routledge, 2001 (reissued 2018).
[11] Kenneth Roth, World Report 2017: The Dangerous Rise of Populism, Human Rights Watch, 2017. Also see, Nicola Lacey, Populism and the Rule of Law, Annual Review of Law and Social Science, Vol. 15, 2019; Inclusive government for a more inclusive society, in Government at a Glance 2015, OEDC Publishing, Paris, 2015; Branko Milanovic, The higher the inequality, the more likely we are to move away from democracy, The Guardian, May 2, 2017.
[12] Yascha Mounk, How populist uprisings could bring down liberal democracy, The Guardian, March 4, 2018. Also see Yascha Mounk, The People vs. Democracy: Why our freedom is in danger & how to save it, Harvard University Press, 2018.
[13] Jamie Watt, Populism is alive and well in Canada, Toronto Star, February 16, 2020.
[14] Anthony Fisher, Trump is not a fan of civil liberties, and Americans are more willing to give up their rights when they’re scared. Here’s why there’s reason to be concerned, regardless of what happens with Iran, Business Insider, January 4, 2020; Max Boot, This is how democracy dies – in full view of a public that couldn’t care less, Washington Post, February 15, 2020; Liora Lazarus, Brexit in the Supreme Court: when populists attack the rule of law, everyone loses, The Conversation, September 26, 2019; Hans Petter Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack, Springer, 2015. Also see, Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century, Tim Duggan Books, 2017.
[15] For example see: David McKnight, Murdoch’s Politics: How One Man’s Thirst for Wealth and Power Shapes Our World, Pluto Press, 2013; Andy Beckett, Murdoch’s Politics: How One Man’s Thirst for Wealth and Power Shapes Our World by David McKnight – review, Guardian, February 20, 2013; Paul Hartley, Murdoch’s Politics: How One Man’s Thirst for Wealth and Power Shapes Our World, Counter Fire, April 26, 2013; Ed Jones, Five reasons why we don’t have a free and independent press in the UK and what we can do about it, Open Democracy, April 18, 2019; Kevin Rudd, Democracy overboard: Rupert Murdoch’s long war on Australian politics, Guardian, September 6, 2019; Jonathan Mahler and Jim Rutenberg, How Rupert Murdoch’s Empire of Influence Remade the World, New York Times, April 3, 2019; David Beers and Charles Campbell, Save Canada’s News Media? Like We Said in 2005 …, The Tyee, February 24, 2016; Lawrence Martin, Canada’s media: A crisis that cries out for a public inquiry, Globe and Mail, February 2, 2016; Tom Ken, Concentration with convergence – Goodbye, freedom of the press, Policy Options, October 1, 2002; Andrew Harris-Schulz, Concentration of Newspaper Ownership in Canada: Postmedia & Sun Media, Medium, July 27, 2016. Also see, Monika Bauerlein, Billionaires Are Not the Answer, Mother Jones, December 6, 2019; Bill Moyers, Segment: How Big Money & Big Media Undermine Democracy, BillMoyers.com, November 8, 2013; Des Freedman, The public says: break big media monopolies and help new journalism projects, The Conversation, April 1, 2015.
[16] Michael Enright (host), The Sunday Edition: What does ‘the rule of law’ really mean? (interview of law professor David Dyzenhaus), CBC Radio, May 31, 2019. Also see, James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; Michael Tomasky, Do the Republicans Even Believe in Democracy Anymore?, New York Times, July 1, 2019; Aaron Belkin, How far will Republicans go to destroy democracy? And can they still be stopped?, Salon, July 10, 2019; Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020; David Frum, Trump is Counting on the Supreme Court to Save Him, The Atlantic, March 7, 2020; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020; Rebecca Ruiz, Robert Gebeloff, Steve Edder, and Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, New York Times, March 14, 2020 (“… judicial …. appointments reflected attempts by recent presidents to draw the federal judiciary – a constitutionally independent branch of government – into policy debates … in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents”); Zack Beauchamp, The Supreme Court, gerrymandering, and the Republican turn against democracy, Vox, June 27, 2019; Jelani Cobb, The Supreme Court Just Legitimized a Cornerstone Element of Voter Suppression, New Yorker, July 3, 2019; David Rothkopf, The Worst Day for Democracy Since the Civil War, Daily Beast, February 1, 2020; Anya Schiffrin (editor), In the Service of Power: Media Capture and the Threat to Democracy, National Endowment for Democracy (Center for International Media Assistance), 2017; Kurt Bardella, Oversight erased, Supreme Court hijacked: Trump turns the presidency into a dictatorship, USA Today, April 9, 2020 (“… the court’s conservative majority is just another political instrument for Trump to wield”); Edward Purcell, The fateful Republican Party Gamble, The Hill, February 24, 2020:
“That possibility seems farfetched until one considers that for the last two decades, Republicans have worked to restructure the political system to entrench themselves with power. They enacted voter suppression laws across more than a dozen states to minimize Democratic voter turnouts. Between the elections of 2012 and 2016, they had eliminated more than 860 polling places in areas with significantly black and hispanic voters.
Similarly, Republicans gerrymandered state electoral districts to ensure dominance in many state legislatures and disproportionate numbers of Republicans in the House of Representatives. Despite receiving only a minority of the total vote in some states, their gerrymanders enabled them to elect a majority of legislators in those states and also send a majority of the delegations from those states to serve in Congress.
More disturbing, Republican justices on the Supreme Court consistently supported those entrenchment efforts with a stream of majority party line votes. In 2000, they issued an unprecedented decision that terminated a disputed election and ensured victory for the Republican presidential candidate. In following years, they invalidated campaign finance limits, upheld voter suppression laws, voided the federal statute that protected voting rights of minorities, and defined political gerrymandering as wholly free from important American constitutional limitations. Each decision enhanced the ability of Republicans to cement themselves in power.
Encouraged by those entrenched advantages, Republicans understand they can also exploit other structural advantages. The Electoral College means they need not be concerned with winning the popular vote. In four of the last five presidential elections Republicans lost that vote, yet in two of the four the Electoral College victoriously gave them the White House. This occurred most recently in 2016, when their candidate lost by nearly three million popular votes yet won the presidency. That inspires their planning, and they are convinced they can repeat that win in 2020. …
Finally, Republicans believe that if they control the presidency and Senate for four more years, they can forge the Supreme Court into a guaranteed party instrument no longer dependent on majorities. They believe they can create a high court that will reliably adopt all their policy goals, bow to presidential power, and affirm whatever expanded entrenchments they deem desirable. It no longer seems farfetched that Republicans are now planning this. Their gamble in 2020 could be fatal … for constitutional government itself. …”
Edward Purcell Jr. is a distinguished professor with New York Law School and is the author of “Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon” set to be published this winter.
[17] David Moscrop, Can democracy survive the coronavirus?, Maclean’s, April 1, 2020.
[18] Hans Petter Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack, Springer, 2015. Also see, Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century, Tim Duggan Books, 2017.
[19] Pankaj Mishra, The west’s self-proclaimed custodians of democracy failed to notice it rotting away, The Guardian, September 20, 2019.
[20] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.
[21] Franklin D. Roosevelt, President of the United States (1933-1945), Message to Congress on Curbing Monopolies, April 29, 1938, The American Presidency Project (presidency.ucsb.edu).
[22] Bill Moyers, We, the People Versus We, the Wealthy, The Nation, September 12, 2016. Also see, William Davies, Why we stopped trusting elites, The Guardian, November 29, 2018; Freedom in the World 2019: Democracy in Retreat, Freedom House, 2019.
[23] See generally, Samuel Bufford, International Rule of Law and the Market Economy – An Outline, 12 Southwestern Journal of Law & Trade in the Americas 303, 2006; Tom Bingham, The Rule of Law, Allen Lane (UK), 2010; Christopher May, Market Exchange and the Rule of Law: Confidence in Predictability, Hague Journal on the Rule of Law, Vol. 10, 2018; Market Economies and the Rule of Law, Remarks by Chairman Alan Greenspan, The Federal Reserve Board, At the 2003 Financial Markets Conference of the Federal Reserve Bank of Atlanta, Sea Island, Georgia, April 4, 2003; John Harwood, Trump’s bending of justice will have consequences, CNN, February 20, 2020; Trust Matters: A vital element for global business, Baker & McKenzie (bakermckenzie.com), 2014.
[24] Tom Bingham, The Rule of Law, Allen Lane (UK), 2010.
[25] Oren Levin-Waldman, How Inequality Undermines Democracy, E-International Relations (e-ir.info), December 10, 2016.
[26] Rosalind Dixon and Julie Suk, Liberal Constitutionalism and Economic Inequality, The University of Chicago Law Review, Vol. 85, Issue 2, 2018. Also see generally: 2020 Edelman Trust Barometer: Executive Summary, Edelman.com, January 19, 2020; 2020 Edelman Trust Barometer, Edelman.com, January 19, 2020.
[27] For example see: Maj. Ronald Alcala, Lt. Col. Eugene Gregory, and Lt. Col. Shane Reeves, China and the Rule of Law: A Cautionary Tale for the International Community, Just Security, June 28, 2018; Claudia Ciobanu, Poland on the Front Line of Europe’s Rule of Law Battle, Reporting Democracy (BalkanInsight.com), September 4, 2019; John Harwood, Trump’s bending of justice will have consequences, CNN, February 20, 2020; Zack Beauchamp, It happened there: how democracy died in Hungary: A new kind of authoritarianism is taking root in Europe – and there are warning signs for America, Vox, September 13, 2018; Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020.
[28] Plutocracy: A form of society defined as being ruled or controlled by a function of wealth or higher income. Government by the wealthy. A country or society governed by the wealthy. As opposed to, Oligarchy: A form of power structure in which power rests with a small number of people. A small group of people having control of a country. A country governed by an oligarchy. A government by oligarchy.
[29] John Cassidy, Is America an Oligarchy? New Yorker, April 18, 2014; Martin Gilens and Benjamin Page, Testing Theories of American Politics: Elites, Interest Groups, and Average Citizens, Perspectives on Politics, Volume 12, No. 3, September 2014; Martin Gilens, Affluence and Influence: Economic Inequality and Political Power in America, Princeton University Press, 2014; Zachary Davies Boren, Major Study Finds the US is an Oligarchy, Business Insider, April 16, 2014; Study: US is an oligarchy, not a democracy, BBC.com, April 17, 2014; Tom McKay, Princeton Study Discovers What Our Politicians Really Think About US – And It’s Shocking, Mic.com, May 9, 2015; Martin Gilens and Benjamin Page, Critics argued with our analysis of U.S. political inequality. Here are 5 ways they’re wrong, Washington Post, May 23, 2016; Professor Robert Finbow (Dalhousie University), Rethinking State Theories for the ‘Deconsolidation of Democracy’: The Rise of Pluralist Plutocracies?, Canadian Political Science Association Annual Meeting, Ryerson University, Toronto, Canada, June 1, 2017. Also see, for example: Corruption is Legal in America, Represent.Us; How to Fix America’s Corrupt Political System, Represent.US; Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.
[30] Duncan Ivison (Deputy Vice Chancellor, University of Sydney), Learning to be Human: Universities in a world of rising inequality and technological change, OECD-forum.org, May 3, 2018.
[31] Dambisa Moyo, Why the survival of democracy depends on a strong middle-class, Globe and Mail, April 20, 2018 (Canada).
[32] Partricia Cohen, Straggling in a Good Economy, and Now Struggling in a Crisis, New York Times, April 16, 2020. Also see, James Manyika, Jan Mishcke, etal, Discussion Paper: A new look at the declining labor share of income in the United States, McKinsey Global Institute, May 2019; Ian Eve Perry and Ken Jacobs, Public Cost of Low-Wage Work in New England, Federal Reserve Bank of Boston, April 2019.
[33] Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.
[34] Catherine Fraser (Chief Justice of Alberta), Message from the Chief Justice: Thoughts for the Future, Court of Appeal of Alberta (albertacourts.ca); Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), May 11, 2001; Rule of Law and the Courts, American Bar Association (americanbar.org), August 22, 2019. Also see, Strengthening Judicial Independence and Impartiality as a Pre-Condition for the Rule of Law in Council of Europe Member States: Opening and concluding remarks, key speeches and General Rapporteur’s report, High-Level Conference of Ministers of Justice and representatives of the Judiciary (Sofia, Bulgaria), April 21-22, 2016.
[35] Torrey Taussig and Bruce Jones, Democracy in the new geopolitics, Brookings.edu, March 22, 2018.
[36] See generally, Bill Moyers, We, the People Versus We, the Wealthy, The Nation, September 12, 2016.
[37] What is populism?, The Economist, December 19, 2016:
“Populists may be militarists, pacifists, admirers of Che Guevara or of Ayn Rand; they may be tree-hugging pipeline opponents or drill-baby-drill climate-change deniers. What makes them all “populists”, and does the word actually mean anything? …
As Benjamin Moffitt explains in his book “The Global Rise of Populism”, a conference at the London School of Economics in 1967 agreed that the term, while useful, was too mushy to be tied down to a single description. Some scholars linked it to frustration over declines in status or welfare, some to nationalist nostalgia. Others saw it as more of a political strategy in which a charismatic leader appeals to the masses while sweeping aside institutions (though not all populist movements have such a leader). Despite its fuzziness, the term’s use has grown.
In 2004 Cas Mudde, a political scientist at the University of Georgia, offered a definition that has become increasingly influential. In his view populism is a “thin ideology”, one that merely sets up a framework: that of a pure people versus a corrupt elite. (He contrasts it with pluralism, which accepts the legitimacy of many different groups.) This thin ideology can be attached to all sorts of “thick” ideologies with more moving parts, such as socialism, nationalism, anti-imperialism or racism, in order to explain the world and justify specific agendas. …
But other scholars feel that the thin-ideology definition fails to capture some dimensions. Jan-Werner Müller, a political scientist at Princeton University, thinks populists are defined by their claim that they alone represent the people, and that all others are illegitimate. And there are important distinctions within the category, such as that between inclusive and exclusive varieties. Exclusive populism focuses on shutting out stigmatised groups (refugees, Roma), and is more common in Europe. Inclusive populism demands that politics be opened up to stigmatised groups (the poor, minorities), and is more common in Latin America. Mr. Mudde argues that while most writers deplore populism, its upside lies in forcing elites to discuss issues they prefer to ignore. But populism’s belief that the people are always right is bad news for two elements of liberal democracy: the rights of minorities and the rule of law.”
[38] Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.
[39] Eric Sigurdson, Corporate Strategy and Geopolitical Risk in a G-Zero World: Inequality, Polarized Democracies, and the shifting economic and political landscape, Sigurdson Post, May 31, 2018.
[40] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018; Lawrence Martin, Is this how fascism comes to America?, Globe and Mail, February 14, 2020; Frida Ghitis, Trump is learning from the dictators, CNN, February 14, 2020; David Moss, What’s Wrong with U.S. Politics, Harvard Business Review, March 2012. Also see generally: Economics, demography and social media only partly explain the protests roiling so many countries today, The Economist, November 14, 2019; How bad is the crisis in democracy?, The Economist, youtube.com, September 26, 2019; Democracy embattled: How bad is the crisis?, Democracy Digest, January 6, 2020 (“Around the world, democracies are getting weaker and elected politicians are becoming more unpopular. Are they serving the people – or themselves?”); Rebecca Ruiz, Robert Gebeloff, Steve Edder, and Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, New York Times, March 14, 2020 (“… judicial …. appointments reflected attempts by recent presidents to draw the federal judiciary – a constitutionally independent branch of government – into policy debates … in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents”).
[41] Tom Bingham, The Rule of Law, Allen Lane (UK), 2010.
[42] Top 5 Quotes by U.S. Supreme Court Justice Lewis Powell, AZ Quotes.com. Also see, Jennifer Smith, Rationed Justice, Suffolk University Law Review, Vol. 49, No. 3, 2016, citing U.S. Supreme Court Justice Lewis Powell; Judy Perry Letter, We must not squander the future of legal services, ABA Journal, February 1, 2020, citing U.S. Supreme Court Justice Lewis Powell.
[43] Tom Bingham, The Rule of Law, Allen Lane (UK), 2010; The Rule of Law, Stanford Encyclopedia of Philosophy (plato.stanford.edu), June 22, 2016.
[44] Freedom in the World 2019: Democracy in Retreat, Freedom House, 2019.
[45] Thomas Piketty, Save Capitalism from the capitalists by taxing wealth, Financial Times, March 28, 2014.
[46] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.
[47] Chethan Kumar, Democracy is the rule of law, not rule by law, The Times of India, December 23, 2019; Editorial, The Guardian view on Modi’s 100 days: trashing lives and the constitution, The Guardian, September 13, 2019; Esh Gupta, Rule of Law in India, International Journal of Legal Science and Innovation, Vol. 1, Issue 2, 2019; Harish Narasappa, Rule of Law in India: A Quest for Reason, Oxford University Press, 2018; Dexter Filkins, Blood and Soil in Narendra Modi’s India: The Prime Minister’s Hindu-nationalist government has cast two hundred million Muslims as internal enemies, The New Yorker, December 2, 2019; Rana Ayyub, Narendra Modi Looks the Other Way as New Delhi Burns, Time, February 28, 2020; Shashi Tharoor, India’s Democratic Dictatorship, Project Syndicate, September 13, 2019; Pankaj Mishra, The west’s self-proclaimed custodians of democracy failed to notice it rotting away, The Guardian, September 20, 2019.
[48] Aziz Huq, This is how democratic backsliding begins: Coups are out. The erosion of the rule of law more typically occurs through the curbing of watchdog agencies, Vox, May 15, 2017. See generally, Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Benedikt Pirker, In Support of the EU Rule of Law and Advocate Eleanor Sharpston – An Open Letter, European Law Blog, March 18, 2020; Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020.
[49] Zack Beauchamp, It happened there: how democracy died in Hungary: A new kind of authoritarianism is taking root in Europe – and there are warning signs for America, Vox, September 13, 2018. Also see, Aziz Huq, This is how democratic backsliding begins: Coups are out. The erosion of the rule of law more typically occurs through the curbing of watchdog agencies, Vox, May 15, 2017; Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017; Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020.
[50] Alexander Panetta, ‘We’ve kept the whole damn country running’: Pandemic deepens divide between haves and have-nots in U.S., CBC News, March 27, 2020. Also see, Inequalities, in Society at a Glance 2019: OECD Social Indicators, OECD Publishing, Paris, 2019;
[51] Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020. Also see, Richard Wilke, Laura Silver, and Alexandra Castillo, Many Across the Globe Are Dissatisfied with How Democracy is Working, Pew Research Center, April 29, 2019; Reade Pickert, Majority of Americans ‘Angry’ at Political System, Poll Shows, Bloomberg, August 25, 2019; The Democracy Project: Reversing a Crisis of Confidence, Freedom House / George W. Bush Institute / Penn Biden Center for Diplomacy and Global Engagement, 2018; Roberto Stefan Foa and Yascha Mounk, The Signs of Deconsolidation, Journal of Democracy, Vol. 28, No. 1, January 2017.
[52] Thomas Piketty, Save Capitalism from the capitalists by taxing wealth, Financial Times, March 28, 2014.
[53] Corruption Perceptions Index 2019, Transparency International, 2020. Also see, Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020.
[54] Liz Kennedy, Campaign Spending Limits Protect Our Democracy from Corruption, U.S. News, October 7, 2013. Also see, John Nichols and Robert McChesney, Dollarocracy: How the Money and Media Election Complex is Destroying America, Nation Books, 2013.
[55] David Moscrop, Can democracy survive the coronavirus?, Maclean’s, April 1, 2020.
[56] Natalie Nougayrede, Across the world, the rule of law is losing out to rule by the mob, Guardian, May 21, 2016; William Davies, Why we stopped trusting elites, Guardian, November 29, 2018. Also see, 2020 Edelman Trust Barometer, Edelman.com, January 19, 2020.
[57] Hillary Hoffower, The typical US worker can no longer afford a family on a year’s salary, showing the dire state of America’s middle class, Business Insider, February 25, 2020; Hillary Hoffower, 6 findings that show the dire state of America’s middle class, Business Insider, May 23, 2019; Christopher Ingraham, This chart is the best explanation of middle-class finances you will ever see, Washington Post, February 24, 2020; Danielle Paquette, Living paycheck to paycheck is disturbingly common: ‘I see no way out’, Washington Post, December 28, 2018; Thomas Piketty, Capital and Ideology, Harvard University Press, 2020; Thomas Piketty, Capital in the Twenty-First Century, Harvard University Press, 2014; Thomas Piketty, The Economics of Inequality, Harvard University Press, 2015.
[58] Ezra Klein, Why the media is so polarized –and how it polarizes us, Vox, January 28, 2020; Jacob Hacker and Nathan Loewentheil, How Big Money Corrupts the Economy, Democracy Journal, Winter 2013.
[59] Max Fisher and Emma Bubola, As Coronavirus Deepens Inequality, Inequality Worsens Its Spread, New York Times, March 15, 2020.
[60] Thomas Piketty, Capital in the Twenty-First Century, Harvard University Press, 2014; Thomas Piketty, The Economics of Inequality, Harvard University Press, 2015.
[61] Yascha Mounk, How populist uprisings could bring down liberal democracy, The Guardian, March 4, 2018. Also see Yascha Mounk, The People vs. Democracy: Why our freedom is in danger & how to save it, Harvard University Press, 2018.
[62] Ricard Partington, Inequality: is it rising, and can we reverse it?, Guardian, September 9, 2019.
[63] Sophie Hardach, Here are 3 facts you need to know about inequality and populism, World Economic Forum, April 30, 2018.
[64] Yascha Mounk, How populist uprisings could bring down liberal democracy, The Guardian, March 4, 2018. Also see Yascha Mounk, The People vs. Democracy: Why our freedom is in danger & how to save it, Harvard University Press, 2018.
[65] Richard Wilke, Laura Silver, and Alexandra Castillo, Many Across the Globe Are Dissatisfied with How Democracy is Working, Pew Research Center, April 29, 2019; Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020.
[66] Michael Tomasky, Do the Republicans Even Believe in Democracy Anymore?, New York Times, July 1, 2019. Also see, Professors Laurent Pech and Dimitry Kochenov, Strengthening the Rule of Law Within the European Union: Diagnoses, Recommendations, and What to Avoid, Reconnect (Reconciling Europe with its Citizens through Democracy and Rule of Law), June 2019; Aaron Belkin, How far will Republicans go to destroy democracy? And can they still be stopped?, Salon, July 10, 2019; David Rothkopf, The Worst Day for Democracy Since the Civil War, Daily Beast, February 1, 2020; Edward Purcell, The fateful Republican Party Gamble, The Hill, February 24, 2020; Steven Levitsky and Lucan Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War, Cambridge University Press, 2010; Zack Beauchamp, It happened there: how democracy died in Hungary: A new kind of authoritarianism is taking root in Europe – and there are warning signs for America, Vox, September 13, 2018; Yasmeen Serhan, The Trump-Modi Playbook, The Atlantic, February 25, 2020; Rana Ayyub, Narendra Modi Looks the Other Way as New Delhi Burns, Time, February 28, 2020; Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020.
[67] Aziz Huq, This is how democratic backsliding begins: Coups are out. The erosion of the rule of law more typically occurs through the curbing of watchdog agencies, Vox, May 15, 2017.
[68] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.
[69] State of Democracy, Human Rights and the Rule of Law: Role of Institutions, Threats to institutions, Report by the Secretary General of the Council of Europe, 2018; Ian Bond and Agata Gostynska-Jakubowska, Democracy and the Rule of Law: Failing Partnership? (policy brief), Centre for European Reform, January 20, 2020.
[70] State of Democracy, Human Rights and the Rule of Law: Role of Institutions, Threats to institutions, Report by the Secretary General of the Council of Europe, 2018; Esh Gupta, Rule of Law in India, International Journal of Legal Science and Innovation, Vol. 1, Issue 2, 2019; Rana Ayyub, Narendra Modi Looks the Other Way as New Delhi Burns, Time, February 28, 2020.
[71] Geoffrey York, World court authorizes probe of alleged war crimes by U.S. and Taliban in Afghanistan, Globe and Mail, March 5, 2020; Deirdre Shesgreen, Pompeo says the U.S. will take ‘all necessary measures’ to bar war-crimes probe of military, USA Today, March 5, 2020; Steve Benen, Endorsing apparent war crimes, Trump abandons all subtlety: As a candidate, Trump ran on a platform that endorsed explicit war crimes. As a president, Trump is abandoning all subtlety on the issue, MSNBC, January 6, 2020; Rosa Brooks, If Trump orders war crimes, the military will face impossible choice – His orders will give them a choice: Disobey the law or the president, Washington Post, January 8, 2020; Doyle McManus, Trump’s war on the rule of law, Los Angeles Times, November 27, 2019; Andrew Sullivan, Donald Trump Is the War Crimes President, New York Magazine, January 10, 2020; Adam Serwer, The War-Crimes President, The Atlantic, November 27, 2019.
[72] Ezra Klein, Why the media is so polarized –and how it polarizes us, Vox, January 28, 2020. Also see, Jacob Hacker and Nathan Loewentheil, How Big Money Corrupts the Economy, Democracy Journal, Winter 2013.
[73] Annenberg Civics Knowledge Survey, Annenberg Public Policy Center of the University of Pennsylvania, 2019; Most Americans trust the Supreme Court, but think it is ‘too mixed up in politics’, APnews.com, October 16, 2019.
[74] Judge Paul Friedman, Threats to Judicial Independence and the Rule of Law, American Bar Association, November 18, 2019.
[75] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.
[76] Sasha Borovik, The rule of law is losing out to the rule of thumb in the Trump impeachment trial, New Europe, January 31, 2020.
[77] Eric Sigurdson, Civility, Advocacy, and the Rule of Law: From Wall Street to Main Street, From the Boardroom to the Courtroom – lawyer civility is crucial in an uncivil world, Sigurdson Post, June 30, 2018; 2020 Edelman Trust Barometer, Edelman.com, January 19, 2020; 2020 Edelman Trust Barometer: Executive Summary, Edelman.com, January 19, 2020; 2019 Edelman Trust Barometer, Edelman.com; 2019 Edelman Trust Barometer Executive Summary, Edelman.com, 2019; Dennis Jaffe, The Essential Importance of Trust: How To Build It Or Restore It, Forbes, December 5, 2018. See reference to “social fabric” in Nicholas Kristof, Donald Trump Is Making America Meaner, New York Times, August 13, 2016.
[78] Kristin Lord, Six Ways to Repair Declining Social Trust, Stanford Social Innovation Review, January 31, 2019; Anat Admati, How Business Schools Can Help Restore Trust in Capitalism, Harvard Business Review, September 3, 2019; 2020 Edelman Trust Barometer, Edelman.com, January 19, 2020; 2020 Edelman Trust Barometer: Executive Summary, Edelman.com, January 19, 2020; 2019 Edelman Trust Barometer, Edelman.com; 2019 Edelman Trust Barometer Executive Summary, Edelman.com, 2019; 2018 Edelman Trust Barometer, Edelman.com; 2017 Edelman Trust Barometer, Edelman.com. Also see, Sandra Sucher and Shalene Gupta, The Trust Crisis, Harvard Business Review, July 23, 2019; and Jane Johnston, Whose interests? Why defining the ‘public interest’ is such a challenge, The Conversation, January 22, 2019.
[79] Christine Lagarde, There’s a reason for the lack of trust in government and business: corruption, The Guardian, May 4, 2018. Also see, Jack Goldsmith, Will Donald Trump Destroy the Presidency? He disdains the rule of law. He’s trampling norms of presidential behavior. And he’s bringing vital institutions down with him, The Atlantic, October 2017 (“Citizens’ trust in American institutions has been in decline for a while. … The breakdown in institutions mirrors the breakdown in social cohesion …”); Georges Enderle, How Can Business Ethics Strengthen the Social Cohesion of a Society?, Journal of Business Ethics, Vol. 150, Issue 3, July 2018; OECD, Perspectives on global development 2012: Social cohesion in a shifting world, OECD Publishing, 2011 (“A society is ‘cohesive’ if it works towards the well-being of all its members, fights exclusion and marginalization, creates a sense of belonging, promotes trust, and offers its members the opportunity of upward social mobility”).
[80] Mark Cohen, 2020 Vision: Focus on Defending the Rule of Law, Forbes, January 7, 2020.
[81] For example see, Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017; Jacques Gallant, As Doug Ford tries to bypass court ruling on cutting Toronto Council, judges stress need for respect for judiciary to maintain public confidence in justice system, Toronto Star, September 13, 2018; Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018; Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Carl Meyer, McLachlin urges public to ‘stand up’ to political interference in the courts, National Observer, December 15, 2017; Sarah Lynch and David Morgan, Juror in Stone case calls Trump attacks ‘appalling’, National Post, February 13, 2020; Peter Baker, Trump Demands 2 Liberal Justices Recuse Themselves From His Cases, New York Times, February 25, 2020 (“…the president’s attack raised the temperature of his continuing assault on the law enforcement and justice systems, which he has tried to bend to his will in increasingly bold ways”.).
[82] Sarah Lynch and David Morgan, William Barr tells jury he won’t be ‘bullied’ by President Trump on Stone case, Globe and Mail, February 13, 2020; Sarah Lynch and David Morgan, Juror in Stone case calls Trump attacks ‘appalling’, National Post, February 13, 2020.
[83] Peter Wade, Trump Has Roger Stone Jurors Fearing for their Safety: ‘It Seems Like Danger is Coming to Me’, Rolling Stone, April 16, 2020. Also see, Sarah Lynch and David Morgan, William Barr tells jury he won’t be ‘bullied’ by President Trump on Stone case, Globe and Mail, February 13, 2020; Sarah Lynch and David Morgan, Juror in Stone case calls Trump attacks ‘appalling’, National Post, February 13, 2020.
[84] Statement of ABA President Judy Perry Martinez Re: Judicial independence and sound exercise of prosecutorial discretion, American Bar Association, February 12, 2020. Also see, The International Bar Association Judicial Integrity Initiative: Judicial Systems and Corruption, International Bar Association (in partnership with the Basel Institute on Governance), May 2016.
[85] 2020 Edelman Trust Barometer: Executive Summary, Edelman.com, January 19, 2020.
[86] 2020 Edelman Trust Barometer, Edelman.com, January 19, 2020.
[87] 2020 Edelman Trust Barometer, Edelman.com, January 19, 2020.
[88] Statement of ABA President Judy Perry Martinez Re: Judicial independence and sound exercise of prosecutorial discretion, American Bar Association, February 12, 2020; Chief Justice John Roberts, 2019 Year-End Report on the Federal Judiciary, Supreme Court of the United States (supremecourt.gov), 2019; Brend Dowdall, The Chief Justice speaks out on judicial independence: Richard Wagner addressed concerns about threats to the rule of law at the CBA’s annual general meeting, National Magazine, February 20, 2020.
[89] For example see, Connor Perrett, Over 1,100 former Justice Department officials call for William Barr’s resignation after his handling of Roger Stone’s sentencing, Business Insider, February 16, 2020; Judy Perry Martinez, Protecting the Courts: Unfair attacks on judges undermine judicial independence, the rule of law, ABA Journal, November 1, 2019; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverly McLachlin, P.C, Chief Justice of Canada, Supreme Court of Canada, September 28, 2017; Professors Laurent Pech and Dimitry Kochenov, Strengthening the Rule of Law Within the European Union: Diagnoses, Recommendations, and What to Avoid, Reconnect (Reconciling Europe with its Citizens through Democracy and Rule of Law), June 2019; Renee Landers and Lisa Goodheart (Co-Chairs), Judicial Independence: Promoting Justice and Maintaining Democracy, Boston Bar Association: Judicial Independence Working Group), August 2019; The International Bar Association Judicial Integrity Initiative: Judicial Systems and Corruption, International Bar Association (in partnership with the Basel Institute on Governance), May 2016.
[90] Mark Cohen, 2020 Vision: Focus on Defending the Rule of Law, Forbes, January 7, 2020.
[91] Aziz Huq, This is how democratic backsliding begins: Coups are out. The erosion of the rule of law more typically occurs through the curbing of watchdog agencies, Vox, May 15, 2017.
[92] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017.
[93] Chuck Rosenberg, This is a revolting assault on the fragile rule of law, Washington Post, February 12, 2020; Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.
[94] See generally, for example: Stephen Maher, Escape from Florida: My 2,400 km drive back to the sanity of Canada, Maclean’s, March 24, 2020; Eric Klinenberg, We Need Social Solidarity, Not Just Social Distancing, New York Times, March 14, 2020.
[95] Chuck Rosenberg, This is a revolting assault on the fragile rule of law, Washington Post, February 12, 2020; Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.
[96] Elizabeth Raymer, New SCC chief justice speaks at Advocate’s’ End of Term Dinner, Canadian Lawyer, June 8, 2018; Tonda MacCharles, Canada’s top judge says Supreme Court should provide leadership at a time when fundamental values are being undermined in the world, Toronto Star, June 22, 2018. Also see, Carl Meyer, McLachlin urges public to ‘stand up’ to political interference in the courts, National Observer, December 15, 2017:
“At her final press conference as chief justice on Dec. 15 in Ottawa, she discussed what she felt were the most important safeguards in Canada against a growing global trend of political interference in judicial systems.
Champions of independent judiciaries, for example, have criticized U.S. President Donald Trump’s attacks on judges and U.S. law enforcement, and his pardon of a sheriff convicted of disregarding a court order. They have voiced concern over Turkey’s dismissal of thousands of judges following an attempted coup, and new laws in Poland and Romania they say boost political control over the legal system.
“We have deep respect for our Charter of Rights and Freedoms among the people of Canada, and we have a public that values an independent judiciary, which is the best defence,” said McLachlin.
“If people stand up and say, ‘We can’t attack our judiciary, we want an independent judiciary,’ that is — in a democracy such as ours — the best way to preserve the rule of law and judicial independence.”
[97] See for example, USA: Paul Krugman, Why It Can Happen Here: We’re very close to becoming another Poland or Hungary, New York Times, August 27, 2018; 2018; Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017; Mark Cohen, Time for the Legal Industry to Speak Out for the Rule of Law, ABA Journal, August 20, 2018; Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017. UK: Sharon Thiruchelvam, Protecting the Rule of Law from populist threats: Threats to the rule of law are a major problem that should not be underestimated in risk areas, including the UK, Raconteur, February 7, 2018; Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Shaheed Fatima, Courts, Legitimacy and the Rule of Law, Israel Law Review, Vol. 50, Issue 3, 2017 (Cambridge.org); Gavin Phillipson, Enemies of the People: MPs and press gang up on the constitution over High Court Brexit ruling, The Conversation, November 4, 2016; Peter Goldsmith, Enemies of the rule of law, The Times, November 17, 2016. Australia: Brigitte Dwyer, Attacking the Rule of Law, The Spectator, March 25, 2017; Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018; Andrew Cannon, Cannon’s Farewell blast: SA’s bastion of the Rule of Law, In Daily.com.au (Adelaide’s Independent News), July 13, 2018. Canada: Ethan Phillips, Can Canadian democracy withstand the era of the strongmen?, Canada Fact Check.ca, September 4, 2018; Marcus Gee, Doug Ford is Challenging Rule of Law Itself, Globe and Mail, September 10, 2018; Marie Henein, Doug Ford, no power grab is worth undermining Canada’s solid foundation, Globe and Mail, September 13, 2018. AG’s: Minister of Justice and Attorney General of Canada Mandate Letter (November 12, 2015), pm.gc.ca; Speech: The Attorney General on who should decide what the public interest is – AG Jeremy Wright QC MP spoke at University College London’s Law Faculty on his role as a guardian of the public interest, gov.uk, Gerard Carney, Comment – The Role of the Attorney General, Bond Law Review, Vol. 9, Issue 1, 1997; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020; Roy Strom, Avoiding Controversy, Rosenstein Defends Rule of Law in ABA Speech, American Lawyer, August 2, 2018; David Frum, With Liberty and Justice for Some, The Atlantic, February 14, 2020; Colin Campbell, Rosenstein: Rule of Law must take precedence over politics, Baltimore Sun, November 9, 2017; Roles and Responsibilities of the Attorney General, attorneygeneral.jus.gov.on.ca; [97] Kevin Wack, American Justice Isn’t Impartial Anymore: The Trump administration has been slowly eroding the independence of the Justice Department, The Atlantic, February 12, 2020; Matt Ford, Trump’s Conquest of the Department of Justice is Complete, The New Republic, February 11, 2020; Sky Palma, ‘Bill Barr is eviscerating the rule of law’: Experts stunned as DOJ abruptly changes course on Roger Stone sentencing, Raw Story, February 11, 2020; Shane Croucher, The Rule of Law is Being ‘Suffocated’ by Trump and his ‘Personal Henchman’ Barr, says Harvard Constitutional Scholar, Newsweek, February 12, 2020; Joel Mathis, The rule of law is dead, The Week, February 12, 2020; Ed Pilkington, Roger Stone furore shows ‘crisis of credibility’ in US justice system, experts warn, The Guardian, February 13, 2020 (“The US justice system is facing a crisis of credibility that could undermine the integrity of federal prosecutors, politicize the legal handling of Donald Trump’s friends and enemies, and ultimately threaten democracy itself, top lawyers warn.”); Andrew Prokop, The fiasco at Bill Barr’s Justice Department, explained, Vox, February 13, 2020; Michelle Mark, Attorney General William Barr has reportedly assigned an outside prosecutor to re-examine the criminal case against Michael Flynn, Business Insider, February 14, 2020; Marcus Gee, Caroline Mulroney’s testing time: Is the Attorney General doing her job as chief law officer, Globe and Mail, September 14, 2018; Martin Regg Cohn, How Doug Ford trumped Caroline Mulroney – and all of us – on basic rights, Toronto Star, September 12, 2018:
“[Attorney General] Mulroney is not solely responsible for the [Premier] Ford fiasco … But by virtue of her unique cabinet position, she bears a higher burden to rein in recklessness, to oppose arbitrariness, to advocate for the rule of law, to remind us of political norms and constitutional conventions (see: U.S. President Donald Trump versus Attorney General Jeff Sessions).
Consider, for example, the primacy of freedom of association, the principle of non-interference in democratic elections, the practice that judges should be respected and not reviled. Where is the attorney general when Ford flouts legal conventions and lashes out at the judiciary?
When the premier demonizes judges as political appointees who dare not judge him, let alone overrule him — claiming that an elected premier reigns supreme until the next vote, free from judicial scrutiny — does the attorney general not caution him, counter him, or contradict him? If this is not what she signed up for last year, why not sign her name to a resignation letter by way of protest?”
[98] Richard Fallon Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, Texas Law Review, Vol. 96, Issue 3, 2018.
[99] Honourable Marsha K. Ternus, Judicial Independence in Peril?, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012.
[100] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017.
[101] Rule of Law and Lawyer Independence Advisory Committee, The Rule of Law and Civil Disobedience, Law Society of British Columbia: Bencher’s Bulletin, No. 4, 2018.
[102] Robert Bell, Can our independent judiciary survive the politicized criticism leveled against it?, ABA Journal, September 13, 2018.
[103] Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016.
[104] U.S.: George Monbiot, How Corporate dark money is taking power on both sides of the Atlantic, The Guardian, February 2, 2017; Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface); Robert Kaiser, So Damn Much Money: The Triumph of Lobbying and the Corrosion of American Government, Vintage Books, 2010; George Tyler, Billionaire Democracy: The Hijacking of the American Political System, BenBella Books, 2018; Jacob Hacker and Nathan Loewentheil, How Big Money Corrupts the Economy, Democracy Journal.org, Winter 2013; Charles Wheelan, It’s Official: In America, Affluence Equals Influence, US News.com, April 22, 2014; Jeffrey Sachs, Scott Pruitt sums up America’s big challenge, CNN, April 10, 2018; Andrew Prokop, 40 charts that explain money in politics, Vox, July 30, 2014; Ciara Torres-Spelliscy, Dark Money as a Political Sovereignty Problem, King’s Law Journal, Vol. 28, No. 2, 2017; Alex Tausanovitch, NRA, Russia and Trump: How ‘dark money’ is poisoning American democracy, CNBC, February 15, 2018; Matt Kelly, It’s Harder to Pay Off Foreign Governments than the American One: Novartis would think twice before giving hundreds of thousands of dollars to Vladimir Putin’s lawyer. But in Washington, the rules are different, BuzzFeed News, May 9, 2018; Fredreka Schouten, Exclusive: Three-quarters of the secret money in recent elections came from 15 groups, USA Today, September 12, 2018; Tim Roemer and Zach Wamp, John McCain’s warning about dark money is real. Stop campaign finance corruption, USA Today, May 8, 2018; Michael Beckel, Dark Money Illuminated, Issue One (issueone.org), 2018. Also see, Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020; Rebecca Ruiz, Robert Gebeloff, Steve Edder, and Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, New York Times, March 14, 2020 (“… judicial …. appointments reflected attempts by recent presidents to draw the federal judiciary – a constitutionally independent branch of government – into policy debates … in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents”).
UK: George Monbiot, How Corporate dark money is taking power on both sides of the Atlantic, The Guardian, February 2, 2017; Duncan Hames, British politics is in the pocket of big money. And the EU vote was no exception, The Guardian, October 7, 2016; Tamasin Cave and Andy Rowell, The truth about lobbying: 10 ways big business controls government, The Guardian, March 12, 2014; Carole Cadwalladr, ‘Dark money’ is threat to integrity of UK elections, say leading academics, The Guardian, April 1, 2017, Ciara Torres-Spelliscy, Dark Money as a Political Sovereignty Problem, King’s Law Journal, Vol. 28, No. 2, 2017.
Australia: Mike Steketee, Donations and democracy: how money is compromising our political system, ABC News (abc.net.au), July 2, 2015; Gareth Hutchens, Labor senator Sam Dastyari claims 10 companies have taken control of Australian politics, Sydney Morning Herald, February 5, 2016; Warwick Smith, Political donations corrupt democracy in ways you might not realise, The Guardian, September 11, 2014; Professor Iain McMenamin, No bribes please, we’re corrupt Australians, The Conversation, May 30, 2016.
EU: Ian Traynor, 30,000 lobbyists and counting: is Brussels under corporate sway?, The Guardian, May 8, 2014; Money, Politics, Power: Corruptions Risks in Europe, Transparency International (transparency.eu), 2012.
Canada: Nancy Macdonald, Welcome to British Columbia, where you ‘pay to play’, Maclean’s, February 11, 2017; Dan Levin, British Columbia: The ‘Wild West’ of Canadian Political Cash, New York Times, January 13, 2017; Ian Bailey, Donations taint B.C.’s approval of Trans Mountain pipeline expansion: advocacy group, Globe and Mail, January 31, 2017; Anver Emon, Foreign Dark Money Taints Canadian Parliamentary Proceeding, University of Toronto Faculty of Law (law.utoronto.ca), October 23, 2017; Linda McQuaig, Who owns Stephen Harper? Money in Politics. ‘Secret Donors’ Supported His Rise to Power, Global Research.ca, February 13, 2015 (and see, Now Toronto.com, February 4, 2015); Beth Hong, Charitable Fraser Institute received $4.3 million in foreign funding since 2000, Vancouver Observer, August 30, 2012; Anne Kingston, How Canada’s growing anti-abortion movement plans to swing the next federal election, Macleans.ca, September 12, 2018; Daniel Tencer, Koch Brothers, Tea Party Billionaires, Donated To Right-Wing Fraser Institute, Reports Show, Huffington Post, April 26, 2012; Warren Bell, Canada’s Republican prime minister, National Observer, October 18, 2015; The Far Right Dark Money Network Behind Conservative Politics: The Justice Centre for Constitutional Freedoms, North 99.org, January 26, 2018; Olivia Ward, Billionaire Koch brothers are big oil players in Alberta, Toronto Star, July 6, 2014; Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016; Mitchell Anderson, Canada’s Real Problem with Intrusive Foreign Interests, The Tyee, February 24, 2014; David Sassoon, Koch Brothers’ Activism Protects their 50 Years in Canadian Heavy Oils, Reuters, May 10, 2012; Ed Finn (editor), Canada After Harper: His ideology-fuelled attack on Canadian society and values, John Lorimer & Company, 2015; Tristin Hopper, Stephen Harper at Bohemian Grove? Hacked email says ex-leader visited shadowy GOP summer camp, National Post, September 16, 2016; Dermod Travis, B.C. Politics Has a ‘Dark Money’ Problem, Huffington Post, December 9, 2015; Graham Thomson, Lone Liberal MLA David Swann warns of ‘dark money’ dangers, Edmonton Journal, November 2, 2017; Donald Gutstein, Harperism: How Stephen Harper and his think tank colleagues have transformed Canada, James Lorimer & Company Publishers, 2014; Chrystia Freeland, Plutocrats: The Rise of the New Global Super-Rich and the Fall of Everyone Else, Penguin Press, 2012.
[105] David Boies, Judicial Independence and the Rule of Law, 22 Wash. Univ. Journal of Law & Policy 57, 2006. See generally, Robin Sears, Americans are demonstrating how to buy an election, Toronto Star, February 23, 2020.
[106] Patricia Timmons-Goodson, If a nation has no independent judiciary, rights are merely ‘empty promises’, ABA Journal, March 1, 2018; Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016; R. v. Lippe, [1991] 2 S.C.R. 114.
[107] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.
[108] The International Commission of Jurists (www.icj.org) has a Center for the Independence of Judges and Lawyers and was instrumental in drafting the UN’s Basic Principles on the Independence of the Judiciary, endorsed by the General Assembly in 1985. See 193.194.138.190/html/menu3/b/h_comp50.htm.
[109] Susan Rose-Ackerman, Judicial Independence and corruption, in Transparency International, Global Corruption Report 2007, Cambridge UK: Cambridge University Press.
[110] Robert Bell, Can our independent judiciary survive the politicized criticism leveled against it?, ABA Journal, September 13, 2018; Mistretta v. United States, 488 U.S. 361, 109 S. Ct. 647 (U.S.S.C. Jan. 18, 1989).
[111] Re Provincial Court Judges, [1997] 3 S.C.R. 3. Also see, MacKeigan v. Hickman, [1989] 2 S.C.R. 796, at 825-28 [summary of decisions of SCC on judicial independence].
[112] Why is Judicial Independence Important to You?, Canadian Judicial Council (cjc-ccm.gc.ca), May 2016; Committee for Justice and Liberty c. Canada (National Energy Board), [1978] 1 S.C.R. 369.
[113] Gerard Brennan, Judicial Independence, Speech delivered at Annual Symposium of the Australian Judicial Conference, Canberra, Australia, November 2, 1996. This speech was quoted in Judicial Integrity Group, Commentary on the Bangalore Principles of Judicial Conduct, UN Office on Drugs and Crime, Commission on Crime Prevention and Criminal Justice, September 2007. Also see, Julie Debeljak, Judicial Independence: A Collection of Material for the Judicial Conference of Australia, Speech delivered at the Judicial Conference of Australia, Uluru, April 2001; Rebecca Ananian-Welsh and George Williams, Judicial Independence from the Executive, Judicial Conference of Australia, jca.asn.au, 2014.
[114] Andrew Cohen, Crime, Justice, Money, Politics: A Brew That Corrodes the Rule of Law, Brennan Center for Justice, October 24, 2014.
[115] The Challenges We Face, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, March 8, 2007.
[116] Kirk Makin, Access to justice becoming a privilege of the rich, judge warns, Globe and Mail, February 10, 2011 (updated April 29, 2018); United Nations and the Rule of Law: Access to Justice, un.org (“Access to justice is a basic principle of the rule of law”). Graham Sharp, The Right to Justice Under the Rule of Law: Guaranteeing an Effective Remedy, 2016; Lord Neuberger, UK’s most senior judge, voices legal aid fears, BBC News, March 5, 2013.
[117] Adam Goldenberg, Why Canada’s Supreme Court appointments are nothing like America’s circus, Maclean’s, July 16, 2018. Also see, Judicial Independence, Impartiality and Integrity, International Network to Promote the Rule of Law (inprol.org); Diego Papayannis, Independence, impartiality and neutrality in legal adjudication, Issues in Contemporary Jurisprudence, Vol. 28, 2016; Tom Bingham, The Rule of Law, Allen Lane, 2010.
[118] Danielle Root, Jake Faleschini, and Grace Oyenubi, Building a More Inclusive Federal Judiciary, Center for Progressive Progress, October 3, 2019:
“[I]n the interests of both equality and the perception of fairness, it is important that judges reflect the parties and populations they serve. As described by scholars Jason Iuliano and Avery Stewart, ‘In dispensing justice to all citizens, the legal system cannot allow one demographically homogenous group to hand down decisions while other racial and ethnic groups bear the brunt of those decisions’. … The [U.S.] federal judiciary does not resemble the public at large.”
[119] Massimo Tommasoli, Rule of Law and Democracy: Addressing the Gap Between Policies and Practices, UN Chronicle, United Nations (un.org), December 2012; Tom Bingham, The Rule of Law, Allen Lane, 2010; Patricia Hughes, Should We Ever Diminish the Application of the Rule of Law?, Slaw, March 26, 2019; Jeremy Waldron, The Rule of Law, Stanford Encyclopedia of Philosophy (Spring 2020 Edition), Edward Zalta (editor); Jorgen Moller and Svend-Erik Skaaning, The Rule of Law: Definitions, Measures, Patterns and Causes, Palgrave Macmillan, 2014 (see Chapter 1: Systematizing Thin and Thick Rule of Law Definition); Brian Tamanaha, On the Rule of Law: History, Politics, Theory, Cambridge University Press, 2004; Rule of Law Definition, International Network to Promote the Rule of Law (inprol.org); Rule of Law Index 2019, World Justice Project, worldjusticeproject.org, 2019; What is the Rule of Law?: The Four Universal Principles, World Justice Project.org.
[120] Hamish McCardle, Linguistic Brilliance: Rule of Law with Chinese Characteristics, Beijjing Law Review, Vol. 10, No. 2, 2019; Randall Peerenboom (editor), Asian Discourses of Rule of Law: Theories and implementation of rule of law in twelve Asian countries, France and the U.S., Routledge Curzon, 2004; Leila Choukroune, Book Review: Randall Peerenboom (ed.), Asian Discourses of Rule of Law, Theories and Implementation of Rule of Law in Twelve Asian Countries, France and the US, China Perspectives, Vol. 61, September-October 2005; Adriaan Bedner, An Elementary Approach to the Rule of Law, Hague Journal on the Rule of Law, Vol. 2, Issue 1, 2010. Also see, Brian Tamanaha, A Concise Guide to the Rule of Law, Legal Studies Research Paper Series, Paper #7-0082, St. John’s University School of Law, September 2007; Erwin van Veen, A shotgun marriage: Rule of Law in fragile societies, Clingendael Magazine (clingendael.org), June 2017.
[121] Anthony Valcke, The Rule of Law: Its Origin and Meanings (A Short Guide for Practitioners), in Encyclopaedia of Global Science Issues, ME Sharp Publishing, 2012.
[122] Rule of Law Index 2019, World Justice Project, worldjusticeproject.org, 2019.
[123] Rule of Law Index 2019, World Justice Project, worldjusticeproject.org, 2019; What is the Rule of Law?: The Four Universal Principles, World Justice Project.org. Also see, Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016 – Definition of Rule of Law.
[124] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.
[125] Caroline Kelly, Ruth Bader Ginsburg: Senate exemplifies trend of sticking with ‘one’s own home crowd’, CNN, February 7, 2020.
[126] Joel Mathis, The rule of law is dead, The Week, February 12, 2020 – “The message to the federal workforce is clear: Mess with the president or his friends, and your career will suffer. Trump is like a bizarro world version of Diogenes: Instead of a ceaseless search to find the last honest man, he instead is doing everything he can to expel all traces of integrity and honesty from American governance.”).
[127] Tom Bingham, The Rule of Law, Allen Lane (UK), 2010; Dr. Munir Ahmad Mughal, A Review on Tom Bingham’s Book ‘The Rule of Law’, SSRN (ssrn.com), March 11, 2013.
[128] William Weisenberg, Why our judges and courts are important, ABA Journal, February 1, 2018.
[129] David Leonhardt, The Sense of Justice That We’re Losing, New York Times, April 29, 2018. Also see, Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020; Rebecca Ruiz, Robert Gebeloff, Steve Edder, and Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, New York Times, March 14, 2020 (“… judicial …. appointments reflected attempts by recent presidents to draw the federal judiciary – a constitutionally independent branch of government – into policy debates … in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents”).
[130] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017; Richard Evans, A Warning From History: a new biography of Hitler reminds us that there is more than one way to destroy a democracy, The Nation, February 28, 2017; Sean Illing, ‘Unprecedented’: 9 historians on why Trump’s war with the FBI is so stunning, Vox, February 1, 2018; Hans Petter Graver, The rule of law, constitutionalism and the judiciary – Why Adolf Hitler Spared the Judges: Judicial Opposition Against the Nazi State, German Law Journal, Vol. 19, No. 4, 2018; ; Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018; John Shattuck, Op-ed: Hijacking liberal democracy, Boston Globe, August 25, 2017.
[131] Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Out With the Old: New Books on Collusion, Civil War, Doomsday, and Other Happy Tidings, by FP Staff, December 29, 2017 — Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House (reviewed by Dan De Luce); Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018. Also see: Dayo Benson, IBA 2016: Corruption, rule of law, justice dominate discussions, Vanguard, October 6, 2016; Patrick Kingsley, After Viktor Orban’s Victory, Hungary’s Judges Start to Tumble, New York Times, May 1, 2018; Attacking the Last Line of Defence: Judicial Independence in Hungary in Jeopardy, Hungarian Helsinki Committee, June 15, 2018; Agence France-Presse, Hungary’s Orban defends Polish government as they seek total control of the courts, PRI.org, July 22, 2017; Polish president vetoes controversial court reforms, Business Insider, July 24, 2017; Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020; Jorge Valero, Katainen: Erosion of rule of law ‘more worrisome’ than Brexit, Euractiv.com, March 2, 2018; Sharon Thiruchelvam, Protecting the Rule of Law from populist threats, Raconteur, February 7, 2018; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, Supreme Court of Canada (scc-csc.ca), September 28, 2017; Philip Petraglia, Comment: The rule of law is the answer to demagogues, Times Colonist, March 17, 2018; Jon Connars, Rule of Law deteriorating across Southeast Asian, Asia Times, September 21, 2018.
[132] Tom McCarthy, All the president’s judges: how Trump can flip courts at a record-setting pace, The Guardian, May 11, 2019.
[133] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017; Peter van Lochem, Legislation against the rule of law – an introduction, The Theory and Practice of Legislation, Vol. 5, Issue 2, 2017; Sharon Thiruchelvam, Protecting the rule of law from populist threats, Raconteur, February 7, 2018; Richard North Patterson, Trump assaults the rule of law, Boston Globe, June 9, 2017; Jonathan Chait, Trump is mobilizing for war against the rule of law, New York Magazine, July 17, 2017; Attacks on judges undermine law – Supreme Court president, BBC News, February 16, 2017.
[134] Yasmeen Serhan, The Trump-Modi Playbook, The Atlantic, February 25, 2020. Also see, Trudy Rubin, Trump’s India trip: Leaders of world’s two most important democracies trash rule of law, Philadelphia Inquirer, February 26, 2020; Rana Ayyub, Narendra Modi Looks the Other Way as New Delhi Burns, Time, February 28, 2020.
[135] Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020.
[136] Matthew Yglesias, American democracy is doomed, Vox, October 8, 2015; David Moss, Fixing What’s Wrong with U.S. Politics, Harvard Business Review, March 2012.
[137] Editorial Board, Judges Shouldn’t Be Partisan Punching Bags, New York Times, April 8, 2018. Also see, for example: USA: Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017. UK: Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Gavin Phillipson, Enemies of the People: MPs and press gang up on the constitution over High Court Brexit ruling, The Conversation, November 4, 2016; Peter Goldsmith, Enemies of the rule of law, The Times, November 17, 2016. Australia: Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018. Canada: Martin Regg Cohn, Never Mind the charter, Doug Ford has diminished our democratic norms, Toronto Star, September 14, 2018 (“it is his demonization of the judiciary that is unprecedented in this country’s history. That not a single member of his cabinet or caucus dissented from his rhetoric is to their enduring discredit”); Ethan Phillips, Can Canadian democracy withstand the era of the strongmen?, Canada Fact Check.ca, September 4, 2018; Jacques Gallant, As Doug Ford tries to bypass court ruling on cutting Toronto Council, judges stress need for respect for judiciary to maintain public confidence in justice system, Toronto Star, September 13, 2018; Marie Henein, Doug Ford, no power grab is worth undermining Canada’s solid foundation, Globe and Mail, September 13, 2018. EU: Roger Cohen, How Democracy Became the Enemy, New York Times, April 6, 2018 (“Hungary and Poland… neutralize an independent judiciary”); Gabriela Baczynska, Court ‘disease’ in Poland, Hungary could spread: judicial body chief, Reuters.com, May 31, 2018 (“Courts have come increasingly under pressure across the EU … as the bloc faces a wave of populism”); Poland’s ruling Law and Justice party is doing lasting damage: once hollowed out, the rule of law is hard to restore, The Economist, April 21, 2018; Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020.
[138] Rule of Law Index 2019 Insights: Highlights and data trends from the WJP Rule of Law Index 2019, wordjusticeproject.org; Rule of Law Index 2019, World Justice Project, worldjusticeproject.org, 2019.
[139] Afua Hirsch, The coronavirus pandemic threatens a crisis for human rights too, Guardian, March 19, 2020.
[140] Yasmeen Serhan, The Trump-Modi Playbook, The Atlantic, February 25, 2020. Also see, Trudy Rubin, Trump’s India trip: Leaders of world’s two most important democracies trash rule of law, Philadelphia Inquirer, February 26, 2020; Rana Ayyub, Narendra Modi Looks the Other Way as New Delhi Burns, Time, February 28, 2020.
[141] Matthew Stephenson, ‘When the Devil Turns’: The Political Foundations of Independent Judicial Review, Journal of Legal Studies, Vol. 32, No. 1, January 2003.
[142] Susan Rose-Ackerman, Judicial Independence and corruption, in Transparency International, Global Corruption Report 2007, Cambridge UK: Cambridge University Press, pp. 15-24. A related book chapter is: An Independent Judiciary and the Control of Corruption, in P. Sabiha Khanum, ed., Judicial Independence and Accountability, Hyderbad: Icfai University Press, 2008, pp.147-167; Dunja Mijatovic, The independence of judges and the judiciary under threat, Council of Europe, March 9, 2019.
[143] U.S.: Nathan Hardy and Richard Jolly, Trump has packed the courts with right-wing ideologues. Democrats, what’s your plan?, Los Angeles Times, December 18, 2019; Tom McCarthy, All the president’s judges: how Trump can flip courts at a record-setting pace, The Guardian, May 11, 2019 (“They are not nominating fair, unbiased judges based on their legal ability. They are appointing movement lawyers to achieve specific policy objectives through the court system.”); Tom McCarthy, Trump’s dark legacy: a US judiciary remade in his own image, The Guardian, December 25, 2019 (“Legal analysts have blasted Trump and McConnell for allowing an unprecedented number of nominees to advance who have staked out extreme philosophies or been flagged as unqualified by the American Bar Association (ABA), the country’s largest non-partisan coalition of lawyers.”); Ian Millhiser, What Trump has done to the courts, explained, Vox, February 4, 2020; Richard Arenberg, The Trumpification of the federal courts, The Hill, January 6, 2020 (“… appoint more partisan and ideological judges”); Henry Gass, Trump presidency’s most lasting impact? A transformed judiciary, Christian Science Monitor, December 19, 2019 (“… corrosive for the federal judiciary, it politicizes the courts.”); Blake Dodge, Trump Judicial Nominees are 85 Percent White and 76 Percent Men, Report Shows, Newsweek, January 16, 2020; Rebecca Ruiz, Robert Gebeloff, Steve Edder, and Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, New York Times, March 14, 2020 (“… judicial …. appointments reflected attempts by recent presidents to draw the federal judiciary – a constitutionally independent branch of government – into policy debates … in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents”).
UK: Adam Forrest, Lady Hale warns government against US-style ‘politicisation’ of court appointments, Independent (independent.co.uk), December 27, 2019; Charles Falconer, This government has plans that would destroy the protection of the law, The Guardian, February 12, 2020; Lord Hodge (Justice of the Supreme Court of the United Kingdom), Preserving judicial independence in an age of populism, North Strathclyde Sheriffdom Conference, Paisely, November 23, 2018. See generally, Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020.
Canada: Joan Bryden, Tories decry judicial appointment amid renewed scrutiny of Peter MacKay’s record, Globe and Mail, February 7, 2020; Daniel LeBlanc, E-mails reveal network of Liberal officials involved in judicial appointments, Globe and Mail, February 18, 2020; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017; Daniel LeBlanc and Sean Fine, Liberals under fire for partisan involvement in judicial appointments, Globe and Mail, February 18, 2020; Lori Turnbull, Influencing judicial appointments isn’t illegal – but not a good look for Trudeau, Globe and Mail, February 19, 2020; Editorial, The Liberal process for appointing judges is transparent and non-partisan, except when it isn’t, Globe and Mail, February 23, 2020.
Australia: Rebecca Ananian-Welsh and Jonathan Crowe (editors), Judicial Independence in Australia: Contemporary Challenges, Future Directions, The Federation Press, 2016; Gabrielle Appleby, Suzanne Le Mire, Andrew Lynch, and Brian Opeskin, Contemporary Challenges Facing the Australian Judiciary: An Empirical Interruption, Melbourne University Law Review, Vol. 42, Issue 2, 2019.
EU: Dunja Mijatovic, The independence of judges and the judiciary under threat, Council of Europe, March 9, 2019; Daniel Naurin and David Kosar, Judicial Authority Under Pressure: Politicisation and Backlash against Courts in the Age of Populism – workshop, The European Consortium for Political Research (ecpr.eu), 2019; Miroslaw Wyrzykowski, Experiencing the Unimaginable: The Collapse of the Rule of Law in Poland, Hague Journal on the Rule of Law, Vol. 11, 2019; Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020.
[144] Richard Fallon Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, Texas Law Review, Vol. 96, Issue 3, 2018. See generally: Adam Liptak, The Polarized Court, New York Times, May 10, 2014; John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016; Norm Ornstein, Why the Supreme Court Needs Term Limits, The Atlantic, May 22, 2014; Lucas Rodriguez, The Troubling Partisanship of the Supreme Court, Stanford Politics.org, January 7, 2016; Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 Supreme Court Review 301, 2016; Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020; Rebecca Ruiz, Robert Gebeloff, Steve Edder, and Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, New York Times, March 14, 2020 (“… judicial …. appointments reflected attempts by recent presidents to draw the federal judiciary – a constitutionally independent branch of government – into policy debates … in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents”).
[145] Susan Rose-Ackerman, Judicial Independence and corruption, in Transparency International, Global Corruption Report 2007, Cambridge UK: Cambridge University Press, pp. 15-24. A related book chapter is: An Independent Judiciary and the Control of Corruption, in P. Sabiha Khanum, ed., Judicial Independence and Accountability, Hyderbad: Icfai University Press, 2008, pp.147-167; Dunja Mijatovic, The independence of judges and the judiciary under threat, Council of Europe, March 9, 2019.
[146] ‘Representational effectiveness’ is broadly defined as the extent to which the judicial appointment process incorporates and reflects the multifarious demographic, ethnic, religious, racial, gender, and regional diversity of the nation in which the court operates. The underlying concern is that the judiciary should reflect the diversity of the society in which it operates. Also see, Blake Dodge, Trump Judicial Nominees are 85 Percent White and 76 Percent Men, Report Shows, Newsweek, January 16, 2020.
[147] Lorne Sossin and Gregoire Webber, Judges transcend political labels, Globe and Mail, December 9, 2014. See generally, Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020; Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020.
[148] Ned Barnett, An Independent judiciary is under siege in Washington and NC, News & Observer, November 25, 2017.
[149] Richard Fallon Jr., Judicial Supremacy, Departmentalism, and the Rule of Law in a Populist Age, Texas Law Review, Vol. 96, Issue 3, 2018. See generally: Adam Liptak, The Polarized Court, New York Times, May 10, 2014; John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016; Norm Ornstein, Why the Supreme Court Needs Term Limits, The Atlantic, May 22, 2014; Lucas Rodriguez, The Troubling Partisanship of the Supreme Court, Stanford Politics.org, January 7, 2016; Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 Supreme Court Review 301, 2016; Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020; Rebecca Ruiz, Robert Gebeloff, Steve Edder, and Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, New York Times, March 14, 2020 (“… judicial …. appointments reflected attempts by recent presidents to draw the federal judiciary – a constitutionally independent branch of government – into policy debates … in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents”).
[150] Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (Available at SSRN.com, date written February 18, 2020, Posted March 6, 2020), 2020. Also see, Fred Barbash, ‘Assault on Democracy’: A sitting federal judge takes on John Roberts, Trump and Republicans, Washington Post, March 11, 2020; Tony Mauro, ‘It Needed to Be Said’: Wisconsin Federal Judge Defends His Article Slamming Roberts Court, National Law Journal, March 11, 2020; Ronn Blitzer, Disorder in the courts: Federal judge blasts Chief Justice John Roberts, Fox News, March 11, 2020.
[151] Adam Forrest, Lady Hale warns government against US-style ‘politicisation’ of court appointments, Independent (independent.co.uk), December 27, 2019. Also see, Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020.
[152] Sophie Turenne (editor), Fair Reflection of Society in Judicial Systems – A Comparative Study, Springer, 2015; Sharyn Roach Anleu and Kathy Mack, The work of the Australian judiciary: Public and judicial attitudes, 20 Journal of Judicial Administration 3, 2010; Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020; Rebecca Ruiz, Robert Gebeloff, Steve Edder, and Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, New York Times, March 14, 2020 (“… judicial …. appointments reflected attempts by recent presidents to draw the federal judiciary – a constitutionally independent branch of government – into policy debates … in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents”); Emily Bazelon, When the Supreme Court Lurches Right: what happens when the Supreme Court becomes significantly more conservative than the public?, New York Times, August 22, 2018:
“In the controversial [United States Supreme Court] cases that shape the public’s perception of the court, we can expect to see a full-blown partisan divide, with the conservative bloc, all Republican appointees, facing off against four liberal-moderates chosen by Democratic presidents. …
The movement’s biggest target is Roe v. Wade, the 1973 decision that identified access to abortion as a constitutional right, yet a poll in July by NBC News and The Wall Street Journal showed an all-time high in public support for the decision, with 71 percent saying that Roe should not be overturned. The conservative wing of the court has also focused on upholding voting restrictions, gerrymanders and purges of the registration rolls. In the 2010 Citizens United decision, the same justices opened the door to a massive amount of spending to influence elections. Polls show, however, that more than 70 percent of Americans don’t like extreme partisan gerrymandering and want to overturn Citizens United.
The conservative justices have also tipped the balance of power toward corporations and away from employees and consumers. In a series of decisions beginning in 2011, they made it harder for consumers and employees to sue companies collectively (by upholding the fine print in contracts that forces disputes into private, case-by-case arbitration, in the face of state and federal laws that would otherwise make such contractual provisions unenforceable). This is an unpopular development, too. In a 2015 national survey, Pew found that in a dispute with a bank, an overwhelming number of people — 95 percent — want the right to bring the dispute to a judge or a jury and 89 percent want the right to participate in a collective (or class-action) lawsuit. Finally, if the court continues down a path to deregulation by second-guessing rather than deferring to the decisions of federal agencies, like the Environmental Protection Agency, it will be at odds with polls showing that about 60 percent of Americans would like to see environmental regulations preserved or strengthened and think they are worth the cost.”
[153] Lawrence Martin, Regardless of the outcome, the U.S. Supreme Court will have lost some credibility, Globe and Mail, September 21, 2018:
“Whether he is confirmed or not, the Kavanaugh case is destined for an ugly ending, with one side or the other screaming foul and with the Supreme Court losing respect.
The American system of governance is an embarrassment enough already. The executive branch under Mr. Trump is unhinged. The legislative branch is a pit of knee-jerk partisanship, so much so that Congress’s approval rating is at about 20 per cent. The electoral system is plagued by big money, by voter suppression and now by foreign interference. The fourth estate is held in lower and lower esteem.
The Supreme Court was the one branch that maintained a good degree of credibility. Owing to the duplicitous work of the politicians, it is losing that distinction.”
[154] Brend Dowdall, The Chief Justice speaks out on judicial independence: Richard Wagner addressed concerns about threats to the rule of law at the CBA’s annual general meeting, National Magazine, February 20, 2020; Canadian Press, Chief justice Richard Wagner says judiciary must decide what training judges need, Globe and Mail, February 19, 2020. Also see, Chief Justice John Roberts, 2019 Year-End Report on the Federal Judiciary, Supreme Court of the United States (supremecourt.gov), 2019 (“we have come to take democracy for granted, and civic education has fallen by the wayside.”).
[155] Paul Krugman, American Democracy May be Dying: Authoritarian rule may be just around the corner, New York Times, April 9, 2020. Also see, Adam Liptak, Rulings on Wisconsin Election Raise Questions About Judicial Partisanship, New York Times, April 7, 2020; David Daley, Republicans Exploit Coronavirus to Undercut Democracy in Wisconsin, Rolling Stone, April 7, 2020; Charles Sykes, What’s Really Behind Wisconsin’s Election Disaster: Culture wars and ideological schisms have turned the state’s highest court into an emblem of political dysfunction, Politico, April 9, 2020; Robert Barnes, Supreme Court rules for Republicans over Wisconsin vote, highlighting partisan divide before a November poll, Washington Post, April 7, 2020.
[156] Adam Liptak, Rulings on Wisconsin Election Raise Questions About Judicial Partisanship, New York Times, April 7, 2020.
[157] John Blake, Voter suppression now has a white face in Wisconsin, CNN, April 13, 2020; Amy Gardner, Dan Balz, and Dan Simmons, Democratic voter motivation in Wisconsin has Republicans worried, Washington Post, April 14, 2020; Sam Levine, Republicans tried to suppress the vote in Wisconsin. It backfired, Guardian, April 14, 2020; John Nichols, Wisconsin Voters Defy Suppression to Oust a Trump-Backed Jurist: Republican legislators, conservative courts, and President Trump tried to upend democracy, but the voters weren’t having it, The Nation, April 14, 2020; Daphne Chen, Marcia Robiou, Elizabeth Mulvey, Kacey Cherry, and June Cross, ‘Voter Suppression At Its Finest’: Wisconsin Citizens Say Missing Ballots, Lines and Coronavirus Kept Them from Being Counted in Election, PBS, April 13, 2020; Ed Kilgore, Progressive Upsets Conservative Judge After Suppressed Vote in Wisconsin, New York Magazine, April 13, 2020.
[158] R. v. Sussex Justices; Ex parte McCarthy, [1924] 1 KB 256, at 259. Lord Chief Justice Hewart’s remarks, uttered nearly 100 years ago, are now heard throughout the common law world and beyond.
[159] See generally: David Daley, Republicans Exploit Coronavirus to Undercut Democracy in Wisconsin, Rolling Stone, April 7, 2020; Charles Sykes, What’s Really Behind Wisconsin’s Election Disaster: Culture wars and ideological schisms have turned the state’s highest court into an emblem of political dysfunction, Politico, April 9, 2020; Robert Barnes, Supreme Court rules for Republicans over Wisconsin vote, highlighting partisan divide before a November poll, Washington Post, April 7, 2020; Adam Liptak, Rulings on Wisconsin Election Raise Questions About Judicial Partisanship, New York Times, April 7, 2020; Paul Krugman, American Democracy May be Dying: Authoritarian rule may be just around the corner, New York Times, April 9, 2020.
[160] Adam Liptak, The Polarized Court, New York Times, May 10, 2014.
[161] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017; Sharon Thiruchelvam, Protecting the rule of law from populist threats, Raconteur, February 7, 2018.
[162] Jonathan Chait, The Rule of Law is Crumbling further each day Under Trump, New York Magazine, June 11, 2018.
[163] Rule of Law and Democracy: Addressing the Gap Between Policies and Practices, UN Chronicle.un.org, Vol. XLIX, No. 4, December 2012; Matthew Spalding, Rule of Law: The Great Foundation of Our Constitution, First Principles (firstprinciplesjournal.com), August 11, 2010; Rule of Law Index 2017-2018, World Justice Project, worldjusticeproject.org, 2018 (page 11); The Role of the UN in Promoting the Rule of Law: Challenges and New Approaches, UN Chronicle, December 2012.
[164] Sharon Thiruchelvam, Protecting the rule of law from populist threats, Raconteur, February 7, 2018.
[165] For example, see: Red Carpet Courts: 10 Stories of how the Rick and Powerful Hijacked Justice, Corporate Europe Observatory etc., June 2019; Brig Gen Shahedul Anam Khan (Retd), Is the law only for the powerful?, The Daily Star, June 1, 2017; Zach Carter, Elizabeth Warren: American Justice is ‘Rigged’ In Favor of the Rich, Huffington Post, February 3, 2016; Jeff Ougler, Rich and famous evade justice in Canada, The Sault Star, July 29, 2019; Graham Newsome, How Long Will the Rich Continue to Evade Justice?, International Policy Digest, February 5, 2020; Chris Fleisher, Bias on the bench: judicial politics play a role in perpetuating racial and gender disparities in sentencing, American Economic Association, March 11, 2019; Alma Cohen and Crystal Yang, Judicial Politics and Sentencing Decisions, American Economic Journal: Economic Policy, Vol. 11, No. 1, February 2019.
[166] TCR Staff, You’re Better Off ‘Rich and Guilty Than Poor and Innocent’, Panel Told, The Crime Report, March 8, 2019; The Challenges We Face, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, March 8, 2007; Nick Cohen, In Britain now, the richer you are, the better your change of justice, The Guardian, April 21, 2018; Frances Gibb, One law for rich, another for poor, complains judge, The Times (thetimes.co.uk), December 6, 2014; Kirk Makin, Access to justice becoming a privilege of the rich, judge warns, Globe and Mail, February 10, 2011 (updated April 29, 2018); Jon Snow, One law for the rich and another for the poor?, Cannel 4 News, August 15, 2011; Editorial Board, How the poor get locked up and the rich go free, Los Angeles Times, August 16, 2017; Jonathan Capehart, How the justice system criminalizes the poor – and funds itself in the process, Washington Post, January 29, 2019; Zach Carter, Elizabeth Warren: American Justice is ‘Rigged’ In Favor of the Rich, Huffington Post, February 3, 2016. Also see, Equal Justice for the Poor, Too; Far too often, money – or the lack of it – can be the deciding factor in the courtroom, says Justice Goldberg, who calls for a program to insure justice for all Americans, New York Times, March 15, 1964.
[167] For example see, John Blake, There’s a painful Black History Month lesson in Trump’s impeachment trial, CNN, February 5, 2020; Jonathan Walton, Impeachment: Ain’t Nothing Gonna Happen, Medium, December 18, 2019;
[168] For example see, Richard Fallon, Law and Legitimacy in the Supreme Court, Belknap Press of Harvard University Press, 2018; Tara Leigh Grove, The Supreme Court’s Legitimacy Dilemma, Harvard Law Review, June 1, 2019; Amelia Thomson-DeVeaux and Oliver Roeder, Is the Supreme Court Facing a Legitimacy Crisis?, FiveThirtyEight, October 1, 2018; Rosemary Westwood, The Political Bias in Our Court Systems: Trump is overhauling the US Supreme Court to match his Republican agenda. Will it set a precedent for Canada?, The Walrus, November 12, 2019; Whitney Ross Manzo, Mitch McConnell is terrible but John Roberts is actually the worst, The Hill, February 3, 2020; Garrett Epps, The Supreme Court Is Trump’s Enforcer, The Atlantic, September 15, 2019; Adam Goldenberg, Why Canada’s Supreme Court appointments are nothing like America’s circus, Maclean’s, July 16, 2018; S.M., Judicial bias: Playing favourites, Economist, May 13, 2014; Linda Greenhouse, Can the Supreme Court Save Itself?, New York Times, November 21, 2019; Gabe Roth, Insight: Why Are Supreme Court Justices Registered as Democrats and Republicans?, Bloomberg Law, February 3, 2020; Debra Cassens Weiss, Which SCOTOS justices are registered Democrats or Republicans? Fix the Court investigates, ABA Journal, February 3, 2020.
[169] Jim Wilets and Areto Imoukheude, A Critique of the Uniquely Adversarial Nature of the U.S. Legal, Economic and Political System and its Implications for Reinforcing Existing Power Hierarchies, University of Pennsylvania Journal of Law and Social Change, Vol. 20, Issue 4, 2017.
[170] Jim Wilets and Areto Imoukheude, A Critique of the Uniquely Adversarial Nature of the U.S. Legal, Economic and Political System and its Implications for Reinforcing Existing Power Hierarchies, University of Pennsylvania Journal of Law and Social Change, Vol. 20, Issue 4, 2017.
[171] The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.
[172] See, generally: Linda Greenhouse, Can the Supreme Court Save Itself?, New York Times, November 21, 2019.
[173] Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018.
[174] The Challenges We Face, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, scc-csc.ca, March 8, 2007. Also see, Nick Cohen, One law for the rich, no law for the poor, The Guardian, March 11, 2012.
[175] Our Issues: The legal system has failed its promise of equal justice, Equal Justice Under Law.org.
[176] Hon. Michael Kirby, The Rule of Law beyond the Law of Rules, Australian Bar Review, Vol. 33, Issue 3, 2010.
[177] Hans Petter Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack, Springer, 2015. Also see, Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century, Tim Duggan Books, 2017.
[178] Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017; Mark Cohen, 2020 Vision: Focus on Defending the Rule of Law, Forbes, January 7, 2020; Jak Allen, Kavanaugh ‘circus’ is a disaster for an independent judiciary, The Conversation, October 4, 2018; Liora Lazarus, Brexit in the Supreme Court: when populists attack the rule of law, everyone loses, The Conversation, September 26, 2019; Jeffrey Meyers, Trump and Johnson are leading the attack against the rule of law, The Conversation, November 12, 2019; Joel Mathis, The rule of law is dead, The Week, February 12, 2020; Ed Pilkington, Roger Stone furore shows ‘crisis of credibility’ in US justice system, experts warn, The Guardian, February 13, 2020; Jonathan Chait, The GOP’s Age of Authoritarianism Has Only Just Begun, New York Magazine, October 31, 2016.
[179] Jeffrey Meyers, Trump and Johnson are leading the attack against the rule of law, The Conversation, November 12, 2019; David Allen Green, Boris Johnson subverts the rule of law, Financial Times, September 11, 2019; Yascha Mounk, What Boris Johnson Did to the World’s Most Stable Democracy, The Atlantic, August 28, 2019; Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020.
[180] Professors Laurent Pech and Dimitry Kochenov, Strengthening the Rule of Law Within the European Union: Diagnoses, Recommendations, and What to Avoid, Reconnect (Reconciling Europe with its Citizens through Democracy and Rule of Law), June 2019; The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017; Brian Porter-Szucs, Poland’s judicial purge another step toward authoritarian democracy, The Conversation, July 6, 2018; Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020; Sharon Thiruchelvam, Protecting the rule of law from populist threats, Raconteur, February 7, 2018.
[181] Chethan Kumar, Democracy is the rule of law, not rule by law, The Times of India, December 23, 2019; Editorial, The Guardian view on Modi’s 100 days: trashing lives and the constitution, The Guardian, September 13, 2019; Esh Gupta, Rule of Law in India, International Journal of Legal Science and Innovation, Vol. 1, Issue 2, 2019; Harish Narasappa, Rule of Law in India: A Quest for Reason, Oxford University Press, 2018; Dexter Filkins, Blood and Soil in Narendra Modi’s India: The Prime Minister’s Hindu-nationalist government has cast two hundred million Muslims as internal enemies, The New Yorker, December 2, 2019; Rana Ayyub, Narendra Modi Looks the Other Way as New Delhi Burns, Time, February 28, 2020; Shashi Tharoor, India’s Democratic Dictatorship, Project Syndicate, September 13, 2019; Pankaj Mishra, The west’s self-proclaimed custodians of democracy failed to notice it rotting away, The Guardian, September 20, 2019; Yasmeen Serhan, The Trump-Modi Playbook, The Atlantic, February 25, 2020; Trudy Rubin, Trump’s India trip: Leaders of world’s two most important democracies trash rule of law, Philadelphia Inquirer, February 26, 2020; Rana Ayyub, Narendra Modi Looks the Other Way as New Delhi Burns, Time, February 28, 2020.
[182] Josh Bornstein, Our politicians show an alarming ignorance of the separation of powers, Guardian, June 16, 2017; Political attacks on the judiciary undermines the independence, integrity and impartiality of Australia’s legal system, Australian Bar Association (austbar.asn.au), January 13, 2018; Act now to bolster government accountability and rule of law, Law Council of Australia, medianet.com.au, January 12, 2019; Paul Gregoire and Ugur Nedim, Dutton Continues to Undermine the Rule of Law, Sydney Criminal Lawyers, January 26, 2018; Morgan Begg, Legal Rights Persistently Undermined by Parliament, Institute of Public Affairs, February 24, 2017; Christopher Knaus, Whistleblower hits out at PM’s department over ‘pervasive and toxic’ disregard for law, Guardian, June 25, 2019.
[183] Leyland Cecco, Justin Trudeau violated law by urging that case be dropped – watchdog, The Guardian, August 14, 2019; Canadian Press, Trudeau breached federal ethics rules in SNC-Lavalin affair: ethics commissioner, Maclean’s, August 14, 2019(“Trudeau also improperly pushed Wilson-Raybould to consider partisan political interests in the matter, contrary to constitutional principles on prosecutorial independence and the rule of law”.); Mashoka Maimona, Quebec’s Ban on Religious Clothing is Chilling: To Be Like Us, You Must Dress Like Us, Los Angeles Times, June 24, 2019; Mark Cardwell, Quebec bill threatens careers of hijab-wearing lawyers, Canadian Lawyer, May 9, 2019; Canada: New Bill Prohibits Religious Symbols for Public-Sector Workers in Quebec, Global Legal Monitor, Library of Congress (loc.gov), August 6, 2019; Scott Reid, Doug Ford, Donald Trump and the humility crisis in politics, Globe and Mail, September 11, 2018; Enzo Dimatteo, Scandals reveal conflict, corruption and cult personality surrounding Doug Ford, Now, December 5, 2018; James McCarten, Contempt for courts? Critics denounce disdain for rule of law in Ontario, U.S., CTV News, November 23, 2018.
[184] Martin Krygier, Backsliding, sabotage and the rule of law: Learning from mistakes, Concilium Civitas, July 9, 2019. Also see, Paul Blokker, Populism as a constitutional project, International Journal of Constitutional Law, Vol. 17, Issue 2, April 2019; Carlos Closa and Dimitry Kochenov (editors), Reinforcing Rule of Law Oversight in the European Union, Cambridge University Press, 2016.
[185] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018; Eric Sigurdson, Civility, Advocacy, and the Rule of Law: From Wall Street to Main Street, From the Boardroom to the Courtroom – lawyer civility is crucial in an uncivil world, Sigurdson Post, June 30, 2019; Eric Sigurdson, Civility, the Rule of Law, and Lawyers: the ‘glue’ that binds society against social crisis – is incivility the ‘ugly new normal’ in government, politics, November 25, 2016. Also see the excellent article: The Decline of Democracy and the Rule of Law: How to Preserve the Rule of Law and Judicial Independence?, Remarks of the Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, September 28, 2017.
[186] Liora Lazarus, Brexit in the Supreme Court: when populists attack the rule of law, everyone loses, The Conversation, September 26, 2019. Also see, Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020.
[187] Jeffrey Meyers, Trump and Johnson are leading the attack against the rule of law, The Conversation, November 12, 2019. Also see, Robert Reich, Trump’s Assault on the Rule of Law, The American Prospect, November 27, 2018; Joel Mathis, The rule of law is dead, The Week, February 12, 2020; Jonathan Chait, The Rule of Law is Crumbling further each day Under Trump, New York Magazine, June 11, 2018; Doyle McManus, Column: Trump’s war on the rule of law, Los Angeles Times, November 27, 2019; Ed Pilkington, Roger Stone furore shows ‘crisis of credibility’ in US justice system, experts warn, The Guardian, February 13, 2020; Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020.
[188] Franklin D. Roosevelt, President of the United States (1933-1945), Message to Congress on Curbing Monopolies, April 29, 1938, The American Presidency Project (presidency.ucsb.edu).
[189] Rohitesh Dhawan and Sean West, The CEO as Chief Geopolitical Officer, KPMG.com, 2018. Also see, 10 biggest corporations make more money than most countries in the world combined, Global Justice Now, September 12, 2016. Also see, Robin Wigglesworth, Larry Fink identifies China as critical BlackRock priority, Financial Times, April 8, 2018; Nyshka Chandran, Hopes are high for China to announce market access reforms on Tuesday, CNBC, April 9, 2018. Also see for example only, Amazon corporation and its CEO Jeff Bezo: Flora Carr, Amazon Is Now More Valuable Than Microsoft and Only 2 Other Companies Are Worth More, Fortune, February 15, 2018; Kate Vinton, Amazon CEO Jeff Bezos is the Richest Person in the World, Forbes, October 27, 2017; Chris Isidore, Jeff Bezos is the richest person in history, CNN, January 9, 2018; Ben Schiller, Is Amazon Killing Jobs and Destroying Communities? At what cost does convenience come? A new report says it’s not just jobs, but the rest of the economy as well, Fast Company, December 2, 2016; Olivia LaVecchia and Stacy Mitchell, Amazon’s Stranglehold: How the Company’s Tightening Grip Is Stifling Competition, Eroding Jobs, and Threatening Communities, Institute for Local Self-Reliance, November 2016.
[190] Larry Elliott, World’s 26 richest people own as much as poorest 50%, says Oxfam, Guardian, January 21, 2019. Also see, Noah Kirsch, The 3 Richest Americans Hold More Wealth Than Bottom 50% of the Country, Study Finds, Forbes, November 9, 2017; Chloe Taylor, The world’s 2,153 billionaires have more wealth than 4.6 billion people combined, Oxfam says, CNBC, January 19, 2020.
[191] Norimitsu Onishi and Constant Meheut, Rich Europeans Flee Virus for 2nd Homes, Spreading Fear and Fury, New York Times, March 29, 2020. Also see, Tracey Tully and Stacey Stowe, The Wealthy Flee Coronavirus. Vacation Towns Respond: Stay Away, New York Times, March 25, 2020.
[192] Jeffrey Sachs, Scott Pruitt sums up America’s big challenge, CNN, April 10, 2018 (“The United States is not alone in this big-money corruption but perhaps has become its world leader. Democracy around the world is being undermined not by a working-class backlash or resurgent nationalism but by money, a lot of it. With the world’s politics awash in money, several world leaders are currently charged with corruption”).
[193] Amanda Holpuch, Millionaires to reap 80% of benefit from tax change in US coronavirus stimulus, Guardian, April 15, 2020. Also see, Igor Derysh, Senate Republicans snuck $90 billion tax cut for millionaires into coronavirus relief legislation, Salon, April 16, 2020; Kevin Drum, Republicans Used the Coronavirus Bill to Give Millionaires a $9 Billion Gift, Mother Jones, April 14, 2020; Megan Henney, Tax change in coronavirus stimulus package overwhelmingly benefits millionaires: change will cost taxpayers nearly $90B in 2020, Fox Business, April 17, 2020.
[194] Nick Cohen, Beware a new wave of populism, born out of coronavirus-induced economic inequity, The Guardian, April 18, 2020. Also see, for example: Marco Chown Oved, Trudeau refuses call to exclude tax haven companies from COVID-19 bailout, Toronto Star, April 22, 2020 [contra, see: Bill Bostock, Denmark and Poland are refusing to bail out companies registered in offshore tax havens, Business Insider, April 20, 2020; Bill Bostock, France is barring firms registered in offshore tax havens from its government coronavirus bailout, following similar bans in Denmark and Poland, Business Insider, April 23, 2020].
[195] Thomas Piketty, Capital in the Twenty-First Century, Harvard University Press, 2014; Thomas Piketty, The Economics of Inequality, Harvard University Press, 2015.
[196] Eric Levitz, The One Percent Have Gotten $21 Trillion Richer Since 1989. The Bottom 50% Have Gotten Poorer, New York Magazine, June 16, 2019; Rec Nutting, The super rich elite have more money than they know what to do with, Market Watch, November 2, 2019; Jake Johnson, ‘Eye-Popping’: Analysis Shows Top 1% Gained $21 Trillion in Wealth Since 1989 While Bottom Half Lost $900 Billion, Common Dreams, June 14, 2019; David Harrison, Historic Asset Boom Passes by Half of Families, Wall Street Journal, August 30, 2019; Lola Fadulu, Study Shows Income Gap Between Rich and Poor Keeps Growing, With Deadly Effects, New York Times, September 10, 2019.
[197] Sophie Hardach, Here are 3 facts you need to know about inequality and populism, World Economic Forum, April 30, 2018.
[198] Hillary Hoffower, The typical US worker can no longer afford a family on a year’s salary, showing the dire state of America’s middle class, Business Insider, February 25, 2020; Hillary Hoffower, 6 findings that show the dire state of America’s middle class, Business Insider, May 23, 2019; Christopher Ingraham, This chart is the best explanation of middle-class finances you will ever see, Washington Post, February 24, 2020; Danielle Paquette, Living paycheck to paycheck is disturbingly common: ‘I see no way out’, Washington Post, December 28, 2018; Thomas Piketty, Capital and Ideology, Harvard University Press, 2020; Thomas Piketty, Capital in the Twenty-First Century, Harvard University Press, 2014; Thomas Piketty, The Economics of Inequality, Harvard University Press, 2015.
[199] Dagny Anderson, etal, Task Force: The Global Implications of Populism on Democracy, Henry M. Jackson School of International Studies, University of Washington, 2018; Kenneth Roth, World Report 2017: The Dangerous Rise of Populism, Human Rights Watch, 2017; Nicola Lacey, Populism and the Rule of Law, Annual Review of Law and Social Science, Vol. 15, 2019; Alan Brudner, Populist and Liberal Democracy, Faulty Blog: University of Toronto, Faculty of Law (law.utoronto.ca), July 16, 2018.
[200] Danny Feingold, What’s behind the rise of Bernie Sanders? Voter concern over economic inequality, Los Angeles Times, February 27, 2020.
[201] Oren Levin-Waldman, How Inequality Undermines Democracy, E-International Relations (e-ir.info), December 10, 2016; Branko Milanovic, The higher the inequality, the more likely we are to move away from democracy, The Guardian, May 2, 2017; Oscar Vilhena Vierira, Inequality and the subversion of the Rule of Law, International Journal of Human Rights, Vol. 4, No. 6, 2007; Laurie Goering, Growing wealth inequality ‘dangerous’ threat to democracy: experts, Reuters, April 15, 2016; Jonathan Aldred, ‘Socialism for the rich’: the evils of bad economics, Guardian, June 6, 2019; Jesse Singal, How Wealthy People Use the Government to Enrich Themselves, New York Magazine, December 28, 2017; Brink Lindsey and Steven Teles, The Captured Economy: How the Powerful Enrich Themselves, Slow Down Growth, and Increase Inequality, Oxford University Press, 2017.
[202] Oren Levin-Waldman, How Inequality Undermines Democracy, E-International Relations (e-ir.info), December 10, 2016; Branko Milanovic, The higher the inequality, the more likely we are to move away from democracy, The Guardian, May 2, 2017; Oscar Vilhena Vierira, Inequality and the subversion of the Rule of Law, International Journal of Human Rights, Vol. 4, No. 6, 2007; Laurie Goering, Growing wealth inequality ‘dangerous’ threat to democracy: experts, Reuters, April 15, 2016; Jonathan Aldred, ‘Socialism for the rich’: the evils of bad economics, Guardian, June 6, 2019; Jesse Singal, How Wealthy People Use the Government to Enrich Themselves, New York Magazine, December 28, 2017; Brink Lindsey and Steven Teles, The Captured Economy: How the Powerful Enrich Themselves, Slow Down Growth, and Increase Inequality, Oxford University Press, 2017; Nicola Lacey, Populism and the Rule of Law, Annual Review of Law and Social Science, Vol. 15, 2019; Alan Brudner, Populist and Liberal Democracy, Faulty Blog: University of Toronto, Faculty of Law (law.utoronto.ca), July 16, 2018. Also see: Michael Hobbes, The Golden Age of White Collar Crime: Elite lawbreaking is out of control, Huffington Post, February 10, 2020. Also see, Jeff Reiman and Paul Leighton, The Rich Get Richer and the Poor Get Prison: Ideology, Class, and Criminal Justice (11th Edition), Routledge, 2017; As inequality grows, so does the political influence of the rich – concentrated wealth leads to concentrated power, The Economist, July 21, 2018; Alicia Bannon, How Secretive Money Is Influencing the Judicial System, Brennan Center, December 14, 2017; Anthony Grasso, Punishment and Privilege: The Politics of Class, Crime, and Corporations in America, Publicly Accessible Penn Dissertations, University of Pennsylvania, 2018; Matt Taibbi, The Divide: American Injustice in the Age of the Wealth Gap, Spiegel & Grau, 2014; Brandon Garrett, Too Big to Jail: How Prosecutors Compromise with Corporations, Harvard University Press, 2016; Glenn Greenwald, With Liberty and Justice for Some: How the Law is Used to Destroy Equality and Protect the Powerful, Metropolitan Books, 2011; Nick Cohen, In Britain now, the richer you are, the better your chance for justice, Guardian, April 21, 2018; Kirk Makin, Access to justice becoming a privilege of the rich, judge warns, Globe and Mail, February 10, 2011 (updated April 29, 2018); Even It Up: Time to end extreme inequality, Oxfam, 2014; Michael Tonry (editor), Prosecutors and Politics: A Comparative Perspective, Crime and Justice: A Review of Research, Vol. 41, No. 1, University of Chicago Press, 2012.
[203] Peter Baker, ‘We the people’: the battle to define populism, Guardian, January 10, 2019.
[204] Joel Koerner, The Rule of Law, Wealth Inequality, and Our Response, Natural Investments LLC, June 29, 2018.
[205] Sophie Hardach, Here are 3 facts you need to know about inequality and populism, World Economic Forum, April 30, 2018; Thomas Piketty, Brahmin Left vs Merchant Right: Rising Inequality & the Changing Structure of Political Conflict (evidence from France, Britain and the US, 1948-2017), World Inequality Database, Working Paper 2018/7, March 2018. Also see, Dipti Jain, ‘Brahmin Left’ vs ‘Merchant Right’ – the emergence of West’s new political conflict, Live Mint, September 12, 2018; Thomas Edsall, Why Is It So Hard for Democracy to Deal with Inequality?, New York Times, February 15, 2018.
[206] Sophie Hardach, Here are 3 facts you need to know about inequality and populism, World Economic Forum, April 30, 2018; Thomas Piketty, Brahmin Left vs Merchant Right: Rising Inequality & the Changing Structure of Political Conflict (evidence from France, Britain and the US, 1948-2017), World Inequality Database, Working Paper 2018/7, March 2018. Also see, Dipti Jain, ‘Brahmin Left’ vs ‘Merchant Right’ – the emergence of West’s new political conflict, Live Mint, September 12, 2018; Thomas Edsall, Why Is It So Hard for Democracy to Deal with Inequality?, New York Times, February 15, 2018.
[207] Yascha Mounk, The Undemocratic Dilemma, Journal of Democracy, Vol. 29, Issue 2, 2018. Also see, Danny Feingold, What’s behind the rise of Bernie Sanders? Voter concern over economic inequality, Los Angeles Times, February 27, 2020.
[208] Richard Samans, A new way to measure economic growth and progress, World Economic Forum, January 22, 2018.
[209] Nicola Lacey, Populism and the Rule of Law, Annual Review of Law and Social Science, Vol. 15, 2019.
[210] Walter Russell Mead, The Coronavirus May Make Trump Stronger, Wall Street Journal, March 25, 2020.
[211] Peter Baker, ‘We the people’: the battle to define populism, Guardian, January 10, 2019. Also see, Nicola Lacey, Populism and the Rule of Law, Annual Review of Law and Social Science, Vol. 15, 2019.
[212] Natalie Nougayrede, Across the world, the rule of law is losing out to rule by the mob, Guardian, May 21, 2016; William Davies, Why we stopped trusting elites, Guardian, November 29, 2018. Also see, 2020 Edelman Trust Barometer, Edelman.com, January 19, 2020.
[213] Natalie Nougayrede, Across the world, the rule of law is losing out to rule by the mob, Guardian, May 21, 2016.
[214] Nicola Lacey, Populism and the Rule of Law, Annual Review of Law and Social Science, Vol. 15, 2019.
[215] Patricia Hughes, Should We Ever Diminish the Application of the Rule of Law?, Slaw, March 26, 2019; Nicola Lacey, Populism and the Rule of Law, Annual Review of Law and Social Science, Vol. 15, October 2019. Also see, Susanne Baer, The Rule of – and not by any – Law. On Constitutionalism, Current Legal Problems, Vol. 71, Issue 1, 2018 (pg. 335-368).
[216] Yascha Mounk, How populist uprisings could bring down liberal democracy, The Guardian, March 4, 2018. Also see Yascha Mounk, The People vs. Democracy: Why our freedom is in danger & how to save it, Harvard University Press, 2018.
[217] For example, looking at the recent US experience: Ian Samuel, Rigging the vote: how the American right is on the way to permanent minority rule, Guardian, November 4, 2018; Eric Lutz, Republicans Now Just Admitting They Want Fewer Americans to Vote, Vanity Fair, April 3, 2020; Jennifer Rubin, Want proof that Republicans want to suppress voters? Just ask Trump, Washington Post, March 31, 2020; Jelani Cobb, Voter-Suppression Tactics in the Age of Trump, New Yorker, October 21, 2018; Kat Tenbarge, In leaked audio, a top Trump adviser said the Republican party has ‘traditionally’ relied on voter suppression, Business Insider, December 21, 2019; Editorial, Trump’s attack on vote-by-mail is an attack on democracy, Washington Post, April 11, 2020; Dr. William Barber and Eddie Glaude, Trump’s Racism Can’t Win Elections. Gerrymandering and Voter Suppression Can, Common Dreams, November 5, 2018; Chauncey Devega, Investigative journalist Greg Palast: How Trump will steal the 2020 election, Salon, February 28, 2020. Also see, Zack Beauchamp, The Supreme Court, gerrymandering, and the Republican turn against democracy, Vox, June 27, 2019; Jelani Cobb, The Supreme Court Just Legitimized a Cornerstone Element of Voter Suppression, New Yorker, July 3, 2019; Ian Millhiser, The Supreme Court’s disturbing order to effectively disenfranchise thousands of Wisconsin voters: American democracy is in deep trouble, Vox, April 6, 2020; Leah Litman, The Supreme Court’s Wisconsin Decision is a Terrible Sign for November: The justices are forcing citizens to choose between voting and staying safe from the coronavirus, The Atlantic, April 7, 2020.
[218] Dagny Anderson, etal, Task Force: The Global Implications of Populism on Democracy, Henry M. Jackson School of International Studies, University of Washington, 2018; Michael Meyer-Resende, Is Europe’s Problem Illiberal Majoritarianism or Creeping Authoritarianism?, Carnegie Europe, June 13, 2018. Also see, Stephen Walt, Top 10 Signs of Creeping Authoritarianism, Revisited, Foreign Policy, July 27, 2017; Borzou Daragahi, Coronavirus could be used by authoritarian leaders as excuse to undermine democracy, experts warn, Independent, March 17, 2020; Oliver Moody and Hannah Lucinda Smith, Strongmen thrive as coronavirus kills of checks and balances, The Times (thetimes.co.uk), March 30, 2020.
[219] Nicola Lacey, Populism and the Rule of Law, Annual Review of Law and Social Science, Vol. 15, October 2019. Also see, Susanne Baer, The Rule of – and not by any – Law. On Constitutionalism, Current Legal Problems, Vol. 71, Issue 1, 2018 (pg. 335-368); Hans Petter Graver, Judges Against Justice: On Judges When the Rule of Law is Under Attack, Springer, 2015; Timothy Snyder, On Tyranny: Twenty Lessons from the Twentieth Century, Tim Duggan Books, 2017.
[220] Michael Tomasky, Do the Republicans Even Believe in Democracy Anymore?, New York Times, July 1, 2019. Also see, Professors Laurent Pech and Dimitry Kochenov, Strengthening the Rule of Law Within the European Union: Diagnoses, Recommendations, and What to Avoid, Reconnect (Reconciling Europe with its Citizens through Democracy and Rule of Law), June 2019; Aaron Belkin, How far will Republicans go to destroy democracy? And can they still be stopped?, Salon, July 10, 2019; David Rothkopf, The Worst Day for Democracy Since the Civil War, Daily Beast, February 1, 2020; Steven Levitsky and Lucan Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War, Cambridge University Press, 2010.
[221] Out With the Old: New Books on Collusion, Civil War, Doomsday, and Other Happy Tidings, by FP Staff, December 29, 2017 — Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House (reviewed by Dan De Luce); Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018.
[222] Editorial Board, Judges Shouldn’t Be Partisan Punching Bags, New York Times, April 8, 2018; Kristine Phillips, All the times Trump personally attacked judges – and why his tirades are worse than wrong, Washington Post, April 27, 2017; Seung Min Kim, Trump is transforming the judiciary, but he has yet to take aim at the court that annoys him the most, Washington Post, May 6, 2018; Carl Meyer, McLachlin urges public to ‘stand up’ to political interference in the courts, National Observer, December 15, 2017:
“At her final press conference as chief justice on Dec. 15 in Ottawa, she discussed what she felt were the most important safeguards in Canada against a growing global trend of political interference in judicial systems.
Champions of independent judiciaries, for example, have criticized U.S. President Donald Trump’s attacks on judges and U.S. law enforcement, and his pardon of a sheriff convicted of disregarding a court order. They have voiced concern over Turkey’s dismissal of thousands of judges following an attempted coup, and new laws in Poland and Romania they say boost political control over the legal system.
“We have deep respect for our Charter of Rights and Freedoms among the people of Canada, and we have a public that values an independent judiciary, which is the best defence,” said McLachlin.
“If people stand up and say, ‘We can’t attack our judiciary, we want an independent judiciary,’ that is — in a democracy such as ours — the best way to preserve the rule of law and judicial independence.”
Also see, Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020; Lina Khan, Thrown Out of Court: how corporations became people you can’t sue, Washington Monthly, June-August 2014; Jessica Silver-Greenberg and Michael Corkery, Arbitration Everywhere, Stacking the Deck of Justice: Beware the Fine Print, The New York Times, Oct. 31, 2015; Jessica Siver-Greenberg and Michael Corkery, In Arbitration, a ‘Privatization of the Justice System’: Beware the Fine Print, The New York Times, Nov. 1, 2015; Jessica Silver-Greenberg, Consumer Bureau Loses Fight to Allow More Class-Action Suits, New York Times, October 24, 2017; Donna Borak and Ted Barrett, Senate kills rule that made it easier to sue banks, CNN, October 25, 2017; Rahul Manchanda, Op-ed: Deep State Mandatory Arbitration Clauses Subvert the American People’s Right to Sue, Modern Diplomacy.eu, December 6, 2017.
[223] For example see, Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017; Jacques Gallant, As Doug Ford tries to bypass court ruling on cutting Toronto Council, judges stress need for respect for judiciary to maintain public confidence in justice system, Toronto Star, September 13, 2018; Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018; Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Carl Meyer, McLachlin urges public to ‘stand up’ to political interference in the courts, National Observer, December 15, 2017.
[224] Lina Khan, Thrown Out of Court: how corporations became people you can’t sue, Washington Monthly, June-August 2014; Jessica Silver-Greenberg and Michael Corkery, Arbitration Everywhere, Stacking the Deck of Justice: Beware the Fine Print, The New York Times, Oct. 31, 2015; Jessica Siver-Greenberg and Michael Corkery, In Arbitration, a ‘Privatization of the Justice System’: Beware the Fine Print, The New York Times, Nov. 1, 2015; Jessica Silver-Greenberg, Consumer Bureau Loses Fight to Allow More Class-Action Suits, New York Times, October 24, 2017; Donna Borak and Ted Barrett, Senate kills rule that made it easier to sue banks, CNN, October 25, 2017; Rahul Manchanda, Op-ed: Deep State Mandatory Arbitration Clauses Subvert the American People’s Right to Sue, Modern Diplomacy.eu, December 6, 2017; Robert Barnes, Supreme Court rules that companies can require workers to accept individual arbitration, Washington Post, May 21, 2018; Adam Liptak, Supreme Court Upholds Workplace Arbitration Contracts Barring Class Actions, New York Times, May 21, 2018.
[225] Maegan Vazquez, Trump slams DOJ and FBI in weekend tweetstorm, CNN, December 4, 2017.
[226] John Wasik, How the GOP Tax Plan Scrooges Middle Class, Retired and Poor, Forbes, November 29, 2017; Peter Goodman and Patricia Cohen, It Started as a Tax Cut. Now It Could Change American Life, New York Times, November 29, 2017; Josh Hoxie, Trump’s Tax Cuts Are the Biggest Wealth Grab in Modern History, Fortune, November 3, 2017; Martin Wolf, A Republican tax plan built for plutocrats, Financial Times, November 21, 2017; Stan Collender, Paul Ryan’s Most Lasting Legacy: Permanent Trillion-Dollar Deficits, Forbes, April 11, 2018; Mark Warner, Congress and the $1 trillion deficit: time to be straight with the American People, CNBC, April 10, 2018; Tom Dickinson, How the GOP Became the Party of the Rich – the inside story of how the Republicans abandoned the poor and middle class to pursue their relentless agenda of tax cuts for the wealthiest one percent, Rolling Stone, November 9, 2011; Dylan Scott, House Republican: my donors told me to pass the tax bill ‘or don’t ever call me again’, Vox, November 7, 2017.
[227] Bob Bryan, The ‘Team Trump takeover’ of government regulation is now complete, Business Insider, November 16, 2017; Eric Lipton and Coral Davenport, Scott Pruitt, Trump’s E.P.A. Pick, Backed Industry Donors Over Regulators, New York Times, January 14, 2017; Coral Davenport and Eric Lipton, Trump Picks Scott Pruitt, Climate Change Denialist, to Lead E.P.A., New York Times, December 7, 2016; Jeffrey Sachs, Scott Pruitt sums up America’s big challenge, CNN, April 10, 2018; Richard Bowen, How to Take Apart the Consumer Financial Protection Bureau, Linkedin.com, April 19, 2018; Charlie May, Mick Mulvaney’s destroying the CFPB – and that’s just what Trump wants – what Mick Mulvaney is doing to the agency he’s supposed to take care of is what’s going on throughout Washington, Salon, February 17, 2018.
[228] Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018. Also see, John Shattuck, Op-ed: Hijacking liberal democracy, Boston Globe, August 25, 2017; John Shattuck, The Hijacking of Democracy: Learning How to Resist, Humanity in Action.org, June 2017 (In June 2017, John Shattuck, Humanity in Action Board member, gave the following speech at the Eighth Annual Humanity in Action International Conference in Berlin, Germany. John Shattuck is a former assistant secretary of state for democracy, human rights and labor, and Professor of Practice in Diplomacy at the Fletcher School of Tufts University, specializing in transatlantic relations and US foreign policy, and Senior Fellow at the Harvard Kennedy School Carr Center for Human Rights Policy); Torrey Taussig and Bruce Jones, Democracy in the new geopolitics, Brookings.edu, March 22, 2018.
[229] J. Jonas Anderson, Court Capture, 59 Boston College Law Review 1543, 2018; Robert O’Harrow and Shawn Boburg, A conservative activist’s behind-the-scenes campaign to remake the nation’s courts, Washington Post, Mary 21, 2019; Caroline Fredrickson and Lisa Graves, On Dark Money and the Right’s Judicial ‘Revival’, The National Law Journal, May 31, 2019; Jamal Greene, Trump’s Judge Whisperer Promised to Take Our Laws Back to the 1930s, Slate, May 27, 2019; Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020; Tomasz Tadeusz Koncewicz, From Constitutional to Political Justice: The Tragic Trajectories of the Polish Constitutional Court, Verfassungslbog: on matters constitutional, February 27, 2019; Courts Under Pressure: Judicial Independence and Rule of Law in the Trump Era, Brennan Center for Justice (brennancenter.org), April 30, 2018; Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Kurt Bardella, Oversight erased, Supreme Court hijacked: Trump turns the presidency into a dictatorship, USA Today, April 9, 2020 (“… the court’s conservative majority is just another political instrument for Trump to wield”); Edward Purcell, The fateful Republican Party Gamble, The Hill, February 24, 2020.
[230] Jeff Gray, Ex-lobbyist for the development industry appointed to Ontario’s land-use tribunal, Globe and Mail, February 7, 2020; Sam Stein and Lachlan Markay, More Than 50% of President Trump’s Nominees Have Ties to the Industries They’re Supposed to Regulate, Daily Beast, October 30, 2017; Danielle Ivory and Robert Faturechi, The Deep Industry Ties of Trump’s Deregulation Teams, New York Times, July 11, 2017; Richard Holden, Vital Signs: when watchdogs become pets – or the problem of ‘regulatory capture’, The Conversation, February 14, 2019; Daniel Carpenter and David Moss (editors), Preventing Regulatory Capture: Special Interest Influence and How to Limit It, Cambridge University Press, 2014.
[231] Kevin Wack, American Justice Isn’t Impartial Anymore: The Trump administration has been slowly eroding the independence of the Justice Department, The Atlantic, February 12, 2020; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020; Matt Ford, Trump’s Conquest of the Department of Justice is Complete, The New Republic, February 11, 2020; Sky Palma, ‘Bill Barr is eviscerating the rule of law’: Experts stunned as DOJ abruptly changes course on Roger Stone sentencing, Raw Story, February 11, 2020; Shane Croucher, The Rule of Law is Being ‘Suffocated’ by Trump and his ‘Personal Henchman’ Barr, says Harvard Constitutional Scholar, Newsweek, February 12, 2020; Joel Mathis, The rule of law is dead, The Week, February 12, 2020; Ed Pilkington, Roger Stone furore shows ‘crisis of credibility’ in US justice system, experts warn, The Guardian, February 13, 2020 (“The US justice system is facing a crisis of credibility that could undermine the integrity of federal prosecutors, politicize the legal handling of Donald Trump’s friends and enemies, and ultimately threaten democracy itself, top lawyers warn.”); Andrew Prokop, The fiasco at Bill Barr’s Justice Department, explained, Vox, February 13, 2020; Michelle Mark, Attorney General William Barr has reportedly assigned an outside prosecutor to re-examine the criminal case against Michael Flynn, Business Insider, February 14, 2020; David Frum, With Liberty and Justice for Some, The Atlantic, February 14, 2020.
[232] Editorial Board, The President and His Power to Pardon, New York Times, May 19, 2019; Jim Waterson, Trump pardons fraudster Conrad Black after glowing biography, The Guardian, May 16, 2019; Vivian Salama, Trump Pardons Ex-Media Baron Conrad Black, a Former Business Partner, Wall Street Journal, May 15, 2019; Sonam Sheth, DOJ veterans were flabbergasted when senior officials intervened to lower Roger Stone’s sentence hours after Trump called it ‘horrible and unfair’, Business Insider, February 11, 2020; Jonathan Chait, Trump Floats Pardon of Russia-Scandal Accomplice Roger Stone, Intelligencer, February 11, 2020; Jonathan Chait, The Rule of Law is Crumbling further each day Under Trump, New York Magazine, June 11, 2018; Michael Shear and Maggie Haberman, Trump Grants Clemency to Blagojevich, Milken and Kerik, New York Times, February 19, 2010; Edward Keenan, ‘Drain the swamp’, Donald Trump said. Now he’s feeding the swamp rats, The Toronto Star, February 19, 2020; David Brennan, Trump’s Pardons Signal He’ll ‘Take Care of’ Associates If They Don’t Turn on Him, Ex-Federal Prosecutor Says, Newsweek, February 19, 2020; Tal Axelrod, Sanders slams Trump pardons as part of ‘broken and criminal justice system’, The Hill, February 18, 2020; Paul Brandus, Trump’s pardons demonstrate his belief that white-collar crime isn’t real crime, MarketWatch, February 19, 2020; Igor Derysh, ‘Corruption fighter’ Trump unleashes a torrent of pardons for rich guys convicted of corruption, Salon, February 18, 2020; Steve Chapman, In Donald Trump’s world, the big shots get out early, Chicago Tribune, February 18, 2020;
[233] Don Pittis, Plutocrats with their crony capitalism are taking over again in the U.S., CBC News, February 20, 2017; Robert Reich, How to End Crony Capitalism: When it comes to getting big money out of politics and ending crony capitalism, there’s no right or left, BillMoyers.com, October 26, 2017; David D’Amato, Don’t confuse the free market with crony capitalism, The Hill, March 30, 2017; Samuel Gregg, Crony Capitalism: Inefficient, Unjust, and Corrupting, Australian Institute, March 15, 2016; Our crony-capitalism index: Planet Plutocrat, Economist, March 15, 2014. Also see, Elsa Peraldi, Beating kleptocrats at their own game: Learning how to tackle kleptocracy more effectively (Kleptocracy – a global phenomenon, with local consequences), Global Integrity.org, June 13, 2019; Melissa Aten, The Rise of Transnational Kleptocracy, Power3.0 International Forum for Democratic Studies, January 18, 2018; Christopher Walker and Melissa Aten, A Challenge for Democracy, Journal of Democracy, Vol. 29, No. 1, January 2018; Franklin Foer, Russian-Style Kleptocracy Is Infiltrating America, The Atlantic, March 2019; The Big Question: What is the Relationship between Kleptocracy and Authoritarianism?, National Endowment for Democracy, November 16, 2017; Cross-border, state-directed kleptocracy – 21st century authoritarianism, Democracy Digest, November 17, 2017; Rebecca Gordon, We’re living in a kleptocracy: American robs from its poor – while its infrastructure crumbles, Salon, November 30, 2015; Janine Wedel, Shadow Elite: How the World’s New Power Brokers Undermine Democracy, Government, and the Free Market, Basic Books (member of Perseus Book Group), 2009; Natalie Duffy and Nate Sibley, Five myths about kleptocracy, Washington Post, January 5, 2017; Sarah Saadoun, American once led anti-corruption fight. Now self-dealing Trump is Kleptocrat’s Role Model, USA Today, October 31, 2019; Chris Johns, Trump’s kleptocracy to the left and Brexit idiocracy to the right, The Irish Times, February 11, 2018.
[234] Anya Schiffrin (editor), In the Service of Power: Media Capture and the Threat to Democracy, National Endowment for Democracy (Center for International Media Assistance), 2017; Ed Jones, Five reasons why we don’t have a free and independent press in the UK and what we can do about it, Open Democracy, April 18, 2019. Also see: David McKnight, Murdoch’s Politics: How One Man’s Thirst for Wealth and Power Shapes Our World, Pluto Press, 2013; Andy Beckett, Murdoch’s Politics: How One Man’s Thirst for Wealth and Power Shapes Our World by David McKnight – review, Guardian, February 20, 2013; Paul Hartley, Murdoch’s Politics: How One Man’s Thirst for Wealth and Power Shapes Our World, Counter Fire, April 26, 2013; Kevin Rudd, Democracy overboard: Rupert Murdoch’s long war on Australian politics, Guardian, September 6, 2019; David Beers and Charles Campbell, Save Canada’s News Media? Like We Said in 2005 …, The Tyee, February 24, 2016; Lawrence Martin, Canada’s media: A crisis that cries out for a public inquiry, Globe and Mail, February 2, 2016; Tom Ken, Concentration with convergence – Goodbye, freedom of the press, Policy Options, October 1, 2002; Andrew Harris-Schulz, Concentration of Newspaper Ownership in Canada: Postmedia & Sun Media, Medium, July 27, 2016. Also see, Monika Bauerlein, Billionaires Are Not the Answer, Mother Jones, December 6, 2019; Bill Moyers, Segment: How Big Money & Big Media Undermine Democracy, BillMoyers.com, November 8, 2013.
[235] Doyle McManus, Column: Trump’s war on the rule of law, Los Angeles Times, November 27, 2019. Also see, Jeffrey Meyers, Trump and Johnson are leading the attack against the rule of law, The Conversation, November 12, 2019; Robert Reich, Trump’s Assault on the Rule of Law, The American Prospect, November 27, 2018; Joel Mathis, The rule of law is dead, The Week, February 12, 2020; Jonathan Chait, The Rule of Law is Crumbling further each day Under Trump, New York Magazine, June 11, 2018.
[236] 2018 Edelman Trust Barometer Global Report, Edelman.com.
[237] Torrey Taussig and Bruce Jones, Democracy in the new geopolitics, Brookings.edu, March 22, 2018.
[238] See for example, USA: Paul Krugman, Why It Can Happen Here: We’re very close to becoming another Poland or Hungary, New York Times, August 27, 2018; Steven Levitsky and Daniel Ziblatt, How Democracies Die, Penguin Random House, January 2018; Steven Levitsky and Daniel Ziblatt, How Wobbly Is Our Democracy?, New York Times, January 27, 2018; Mark Cohen, The All-Out Assault on the Rule of Law, Forbes, February 20, 2017; Mark Cohen, Time for the Legal Industry to Speak Out for the Rule of Law, ABA Journal, August 20, 2018; Michael Boyd, United States Judges are not Enemies of the People: In his brazen attempts to subvert the rule of law, President Trump is setting a dangerous precedent, Huffington Post, February 7, 2017; Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016. UK: Sharon Thiruchelvam, Protecting the Rule of Law from populist threats: Threats to the rule of law are a major problem that should not be underestimated in risk areas, including the UK, Raconteur, February 7, 2018; Crawford Jamieson, Where is the line between legitimate accountability and calling judges ‘enemies of the people’, Law Society.org.uk, 2017; Shaheed Fatima, Courts, Legitimacy and the Rule of Law, Israel Law Review, Vol. 50, Issue 3, 2017 (Cambridge.org); Gavin Phillipson, Enemies of the People: MPs and press gang up on the constitution over High Court Brexit ruling, The Conversation, November 4, 2016; Peter Goldsmith, Enemies of the rule of law, The Times, November 17, 2016; Owen Bowcott, Access to justice under threat in UK, says supreme court judge, The Guardian, September 26, 2018. Australia: Paul Karp, Legal body says rule of law threatened after Dutton’s criticism of judiciary, The Guardian, January 15, 2018; Chris Merritt, Faster erosion of rights ‘threat to rule of law’, The Australian, April 15, 2016; Andrew Cannon, Cannon’s Farewell blast: SA’s bastion of the Rule of Law, In Daily.com.au (Adelaide’s Independent News), July 13, 2018. EU: Roger Cohen, How Democracy Became the Enemy, New York Times, April 6, 2018 (“Hungary and Poland… neutralize an independent judiciary”); Gabriela Baczynska, Court ‘disease’ in Poland, Hungary could spread: judicial body chief, Reuters.com, May 31, 2018 (“Courts have come increasingly under pressure across the EU … as the bloc faces a wave of populism”); Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020; Nils Engstad, Challenges to Judicial Independence, Norwegian Bar Association and Norwegian Association of Judges and International Commission of Jurists, April 12, 2018. Canada: Martin Regg Cohn, Doug Ford’s honeymoon is eclipsed by his darkest hour, Toronto Star, September 19, 2018 (“The takeaway for Ontarians is that the premier boasts of his willingness to take away their rights on a moment’s notice, in midnight sittings, while they sleep. People who weren’t paying attention may now watch closely; those who gave his government the benefit of the doubt are now on notice; voters who assumed Ford’s cabinet would keep the premier in check should now check more closely.”); Martin Regg Cohn, The new Doug Ford reverts to his old self, Toronto Star, September 10, 2018 (“Democracy is what I say it is. No matter what a judge says.”); Marcus Gee, Beware the populist echoes in the Ford Government, Globe and Mail, September 22, 2018; Ethan Phillips, Can Canadian democracy withstand the era of the strongmen?, Canada Fact Check.ca, September 4, 2018; Marcus Gee, Doug Ford is Challenging Rule of Law Itself, Globe and Mail, September 10, 2018; Marie Henein, Doug Ford, no power grab is worth undermining Canada’s solid foundation, Globe and Mail, September 13, 2018; Andrew Coyne, The notwithstanding clause has always been like an unexploded bomb. In Ontario, it just went off, National Post, September 10, 2018 (“This is, rather, about constitutional government and the rule of law. A government that believed in either would respond to a decision it thought was bad law by appealing it to a higher court — not by exempting the law from all judicial scrutiny. No government in the history of Ontario has taken such an extraordinary step; by contrast, Ford has made clear he intends to do this routinely, wherever a provincial law is found to violate the Constitution.”); Edward Keenan, Doug Ford unleashes the politics of maximum chaos, Toronto Star, September 10, 2018; Jacques Gallant, Doug Ford’s constitutional manoeuvre brings role of judges into focus, Toronto Star, September 11, 2018; Carissima Mathen, Doug Ford’s powers are not limitless – thanks to a system he neither understands nor values, Globe and Mail, September 10, 2018; Heather MacIvor, Does Premier Ford see the Constitution as merely a speed bump?, The Lawyer’s Daily, September 11, 2018; Sean Fine, Liberals not always appointing ‘highly recommended’ judges: Government selecting some judges from ‘recommended’ list, raising questions about whether politics is playing a role, Globe and Mail, October 30, 2017; Canadian Press, Canada places 55th in global freedom-of-information law rankings, Toronto Star, September 28, 2018; Roncarelli v. Duplessis, [1959] S.C.R. 121, has become the most cited Canadian judicial decision in the field of the rule of law. Justice Rand’s judgment in the Supreme Court reflects the ideal of the independent judiciary as a bulwark against arbitrary state action:
“…there is no such thing as absolute and untrammeled “discretion,” that is that action can be taken on any ground or for any reason that can be suggested to the mind of the administrator … “Discretion” necessarily implies good faith in discharging public duty … Could an applicant be refused a permit because he had been born in another province, or because of the colour of his hair? The ordinary language of the legislator cannot be so distorted.”
That, in the presence of expanding administrative regulation of economic activities, such a step and its consequences are to be suffered by the victim without recourse or remedy, that an administration according to law is to be superseded by action dictated by and according to the arbitrary likes, dislikes and irrelevant purposes of public officers acting beyond their duty, would signalize the beginning of the disintegration of the rule of law as a fundamental postulate of our constitutional structure.”
[239] For example, see: Adam Liptak, The Polarized Court, New York Times, May 10, 2014 (“The partisan polarization on the court reflects similarly deep divisions in Congress, the electorate and the elite circles in which the justices move. … The perception that partisan politics has infected the court’s work may do lasting damage to its prestige and authority and to Americans’ faith in the rule of law.” … “An undesirable consequence of the court’s partisan divide, is that it becomes increasingly difficult to contend with a straight face that constitutional law is not simply politics by other means, and that justices are not merely politicians clad in fine robes.”); John Daniel Davidson, Americans Are Losing Confidence in the Supreme Court, The Federalist, June 29, 2016 (“If Americans increasingly don’t believe the Supreme Court cares all that much about matters of law, perhaps it’s because the court’s rulings increasingly appear to be motivated by politics and preferred policy outcomes rather than the rule of law or even consistent legal reasoning”.); Adam Liptak, A Polarized Supreme Court, Growing More So, New York Times, April 9, 2017; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rownan & Littlefield, 2016; Norm Ornstein, Why the Supreme Court Needs Term Limits, The Atlantic, May 22, 2014; Lucas Rodriguez, The Troubling Partisanship of the Supreme Court, Stanford Politics.org, January 7, 2016; Neal Devins and Lawrence Baum, Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court, 2016 Supreme Court Review 301, 2016; Kenneth Grady, The Election, the Rule of Law, and the Role of Lawyers, Seytlines.com, November 17, 2016:
“Overall, in 2016, the WJP ranked the United States 18 out of 113 countries on the [Rule of Law] Index—an okay ranking but certainly not world class. For the category access to civil justice, the United States ranked a measly 28 out of those 113 countries. For comparison, in addition to countries you might expect such as Germany, Japan, the United Kingdom, and Canada, other countries outscoring the United States included Estonia, Uruguay, and Barbados.
The following quote from Judge Jed S. Rakoff, a United States District Judge on senior status for the Southern District of New York, elucidates one part of the problem:
“Over the past few decades, ordinary US citizens have increasingly been denied effective access to their courts. There are many reasons for this. One is the ever greater cost of hiring a lawyer. A second factor is the increased expense, apart from legal fees, that a litigant must pay to pursue a lawsuit to conclusion. A third factor is increased unwillingness of lawyers to take a case on a contingent-fee basis when the anticipated monetary award is modest. A fourth factor is the decline of unions and other institutions that provide their members with free legal representation. A fifth factor is the imposition of mandatory arbitration. A sixth factor is judicial hostility to class action suits. A seventh factor is the increasing diversion of legal disputes to regulatory agencies. An eighth factor, in criminal cases, is the vastly increased risk of a heavy penalty in going to trial.
For these and other reasons, many Americans with ordinary legal disputes never get the day in court that they imagined they were guaranteed by the law. A further result is that most legal disputes are rarely decided by judges, and almost never by juries. And still another result is that the function of the judiciary as a check on the power of the executive and legislative branches and as an independent forum for the resolution of legal disputes has substantially diminished—with the all-too-willing acquiescence of the judiciary itself.”
The rule of law we hear about is not the rule of law most in the United States experience.”
[240] Adam Bonica and Maya Sen, The Politics of Selecting the Bench from the Bar: The Legal Profession and Partisan Incentives to Politicize the Judiciary, The Journal of Law and Economics, Volume 60, Issue 4, 2017; Honourable Marsha K. Ternus, Judicial Independence in Peril?, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012; Daniel P. Tokaji, A Toxic Brew: Judicial Elections in the Age of Big-Money Politics, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012; Adam Goldenberg, Why Canada’s Supreme Court appointments are nothing like America’s circus, Macleans.ca, July 16, 2018; Alexei Trochev and Rachel Ellett, Judges and their Allies: Rethinking Judicial Autonomy through the Prism of Off-Bench Resistance, Journal of Law and Courts, Vol. 2, No. 1, Spring 2014; Lee Epstein and Jeffrey Segal, Advice and Consent: The Politics of Judicial Appointments, Oxford University Press, 2005; Santosh Paul, The Politics of Judicial Appointments, Live Law.in, March 21, 2018; Daniel Nadler, An Opportune Moment: The Judicial Appointment Reforms and the Judicial Credentials Demanded by the Charter, Constitutional Forum, Vol. 15, Number 3, 2006; Debra Cassens Weiss, State Farm to pay $250M to settle suit claiming it orchestrated win of justice who voted its way, ABA Journal, September 10, 2018 (“…the litigation helped expose truths about hidden corporate influence in judicial elections. “We learned a lot about dark money in America”.).
[241] Charles Gardner Geyh (ed.), What’s Law Got to Do With It? What Judges Do, Why They Do It, and What’s at Stake, Stanford University Press, 2011; Adam Liptak and Janet Roberts, Tilting the Scales?: Campaign Cash Mirrors a High Court’s Rulings, New York Times, October 1, 2006; Daniel P. Tokaji, A Toxic Brew: Judicial Elections in the Age of Big-Money Politics, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012. Also see, Michael S. Kang and Joanna M. Shepherd, The Partisan Price of Justice: An Empirical Analysis of Campaign Contributions and Judicial Decisions, 86 N.Y.U. L. REV. 69, 76 (2011); Debra Cassens Weiss, State Farm to pay $250M to settle suit claiming it orchestrated win of justice who voted its way, ABA Journal, September 10, 2018 (“The suit had alleged State Farm used nonprofits to secretly fund and orchestrate [Judge] Karmeier’s election … the litigation helped expose truths about hidden corporate influence in judicial elections. “We learned a lot about dark money in America”.); Adam Cohen, Judges are for Sale – and Special Interests are Buying: A new report details how big business and corporate lobbyists are packing courts with judges who put special interests ahead of the public interest, Time, October 31, 2011.
[242] ‘Representational effectiveness’ is broadly defined as the extent to which the judicial appointment process incorporates and reflects the multifarious demographic, ethnic, religious, racial, gender, and regional diversity of the nation in which the court operates. The underlying concern is that the judiciary should reflect the diversity of the society in which it operates.
[243] Joseph Arvay, Sean Hern, and Alison Latimer, Why we need a constitutional challenge on judicial appointments, Globe and Mail, August 6, 2015.
[244] See generally: Robert Reich, How to End Crony Capitalism: When it comes to getting big money out of politics and ending crony capitalism, there’s no right or left, BillMoyers.com, October 26, 2017; David D’Amato, Don’t confuse the free market with crony capitalism, The Hill, March 30, 2017; Samuel Gregg, Crony Capitalism: Inefficient, Unjust, and Corrupting, Australian Institute, March 15, 2016.; Elsa Peraldi, Beating kleptocrats at their own game: Learning how to tackle kleptocracy more effectively (Kleptocracy – a global phenomenon, with local consequences), Global Integrity.org, June 13, 2019; Melissa Aten, The Rise of Transnational Kleptocracy, Power3.0 International Forum for Democratic Studies, January 18, 2018; Christopher Walker and Melissa Aten, A Challenge for Democracy, Journal of Democracy, Vol. 29, No. 1, January 2018; Nick Bryant, Trump impeachment trial: Is US politics beyond the point of repair? BBC News, February 9, 202.
[245] David Frum, How to Build an Autocracy, The Atlantic, March 2017; Aaron Belkin, How far will Republicans go to destroy democracy? And can they still be stopped?, Salon, July 10, 2019; Franklin Foer, Russian-Style Kleptocracy Is Infiltrating America, The Atlantic, March 2019; The Big Question: What is the Relationship between Kleptocracy and Authoritarianism?, National Endowment for Democracy, November 16, 2017; Cross-border, state-directed kleptocracy – 21st century authoritarianism, Democracy Digest, November 17, 2017; Rebecca Gordon, We’re living in a kleptocracy: American robs from its poor – while its infrastructure crumbles, Salon, November 30, 2015; Janine Wedel, Shadow Elite: How the World’s New Power Brokers Undermine Democracy, Government, and the Free Market, Basic Books (member of Perseus Book Group), 2009; Natalie Duffy and Nate Sibley, Five myths about kleptocracy, Washington Post, January 5, 2017; Sarah Saadoun, American once led anti-corruption fight. Now self-dealing Trump is Kleptocrat’s Role Model, USA Today, October 31, 2019; Chris Johns, Trump’s kleptocracy to the left and Brexit idiocracy to the right, The Irish Times, February 11, 2018; David Rothkopf, The Worst Day for Democracy Since the Civil War, Daily Beast, February 1, 2020; Charles Edel, Democracy is Fighting for Its Life, Foreign Policy, September 10, 2019; Michael Enright (host), The Sunday Edition: What does ‘the rule of law’ really mean? (interview of law professor David Dyzenhaus) , CBC Radio, May 31, 2019; Michael Tomasky, Do the Republicans Even Believe in Democracy Anymore?, New York Times, July 1, 2019; Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020; James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; David Frum, Trump is Counting on the Supreme Court to Save Him, The Atlantic, March 7, 2020; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020; Rebecca Ruiz, Robert Gebeloff, Steve Edder, and Ben Protess, A Conservative Agenda Unleashed on the Federal Courts, New York Times, March 14, 2020 (“… judicial …. appointments reflected attempts by recent presidents to draw the federal judiciary – a constitutionally independent branch of government – into policy debates … in recent decades the search has been for hard-wired ideologues because they’re reliable policy agents”); Zack Beauchamp, The Supreme Court, gerrymandering, and the Republican turn against democracy, Vox, June 27, 2019; Jelani Cobb, The Supreme Court Just Legitimized a Cornerstone Element of Voter Suppression, New Yorker, July 3, 2019; David Rothkopf, The Worst Day for Democracy Since the Civil War, Daily Beast, February 1, 2020; Kurt Bardella, Oversight erased, Supreme Court hijacked: Trump turns the presidency into a dictatorship, USA Today, April 9, 2020 (“… the court’s conservative majority is just another political instrument for Trump to wield”); Edward Purcell, The fateful Republican Party Gamble, The Hill, February 24, 2020:
“That possibility seems farfetched until one considers that for the last two decades, Republicans have worked to restructure the political system to entrench themselves with power. They enacted voter suppression laws across more than a dozen states to minimize Democratic voter turnouts. Between the elections of 2012 and 2016, they had eliminated more than 860 polling places in areas with significantly black and hispanic voters.
Similarly, Republicans gerrymandered state electoral districts to ensure dominance in many state legislatures and disproportionate numbers of Republicans in the House of Representatives. Despite receiving only a minority of the total vote in some states, their gerrymanders enabled them to elect a majority of legislators in those states and also send a majority of the delegations from those states to serve in Congress.
More disturbing, Republican justices on the Supreme Court consistently supported those entrenchment efforts with a stream of majority party line votes. In 2000, they issued an unprecedented decision that terminated a disputed election and ensured victory for the Republican presidential candidate. In following years, they invalidated campaign finance limits, upheld voter suppression laws, voided the federal statute that protected voting rights of minorities, and defined political gerrymandering as wholly free from important American constitutional limitations. Each decision enhanced the ability of Republicans to cement themselves in power.
Encouraged by those entrenched advantages, Republicans understand they can also exploit other structural advantages. The Electoral College means they need not be concerned with winning the popular vote. In four of the last five presidential elections Republicans lost that vote, yet in two of the four the Electoral College victoriously gave them the White House. This occurred most recently in 2016, when their candidate lost by nearly three million popular votes yet won the presidency. That inspires their planning, and they are convinced they can repeat that win in 2020. …
Finally, Republicans believe that if they control the presidency and Senate for four more years, they can forge the Supreme Court into a guaranteed party instrument no longer dependent on majorities. They believe they can create a high court that will reliably adopt all their policy goals, bow to presidential power, and affirm whatever expanded entrenchments they deem desirable. It no longer seems farfetched that Republicans are now planning this. Their gamble in 2020 could be fatal … for constitutional government itself. …”
Edward Purcell Jr. is a distinguished professor with New York Law School and is the author of “Antonin Scalia and American Constitutionalism: The Historical Significance of a Judicial Icon” set to be published this winter.
[246] Adam Cohen, How the Supreme Court Favors the Rich and Powerful, Time, March 3, 2020; Adam Cohen, Supreme Inequality: The Supreme Court’s Fifty-Year Battle for a More Unjust America, Penguin Press, 2020. Also see, David Frum, Trump is Counting on the Supreme Court to Save Him, The Atlantic, March 7, 2020; Lynn Adelman, The Roberts Court’s Assault on Democracy, Harvard Law & Policy Review, Forthcoming (SSRN, February 18, 2020); James Zirin, Supremely Partisan: How Raw Politics Tips the Scales in the United States Supreme Court, Rowan & Littlefield, 2016; Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020.
[247] Alison Taylor, The corporate responsibility façade is finally starting to crumble, Quartz (qz.com), March 4, 2020. Also see, Eric Sigurdson, Corporate Culture and the Normalization of Deviance: leadership, corporate culture, and the pathway to organizational integrity, Sigurdson Post, March 31, 2018.
[248] Mark Joseph Stern, By a 5- Vote, SCOTUS Lets Wisconsin Throw Out Tens of Thousands of Ballots: The conservative majority just approved one of the most brazen acts of voter suppression in modern times, Slate, April 6, 2020. Also see, The supreme court blocks more absentee voting in Wisconsin: The move should give Republicans a handy advantage, Economist, April 7, 2020.
[249] David Wilkinson, The Principled Leadership Scale – Interview / podcast, Oxford Review, 2019; Karen Hendrikz and Amos Engelbrecht, The principled leadership scale: An integration of value-based leadership, SA Journal of Industrial Psychology, Vol. 45, 2019.
[250] Jak Allen, Kavanaugh ‘circus’ is a disaster for an independent judiciary, The Conversation, October 4, 2018. Also see, David Lurie, SCOTUS’ Choice: Trump or the Rule of Law, Dailey Beast, November 7, 2019.
[251] Kevin Wack, American Justice Isn’t Impartial Anymore: The Trump administration has been slowly eroding the independence of the Justice Department, The Atlantic, February 12, 2020.
[252] Professors Laurent Pech and Dimitry Kochenov, Strengthening the Rule of Law Within the European Union: Diagnoses, Recommendations, and What to Avoid, Reconnect (Reconciling Europe with its Citizens through Democracy and Rule of Law), June 2019. Also see, Aaron Belkin, How far will Republicans go to destroy democracy? And can they still be stopped?, Salon, July 10, 2019; Michael Tomasky, Do the Republicans Even Believe in Democracy Anymore?, New York Times, July 1, 2019; David Rothkopf, The Worst Day for Democracy Since the Civil War, Daily Beast, February 1, 2020; Steven Levitsky and Lucan Way, Competitive Authoritarianism: Hybrid Regimes after the Cold War, Cambridge University Press, 2010; Capturing the Courts: As Poland’s government punishes judges, corruption is rising, The Economist, March 22, 2020.
[253] Daniel P. Tokaji, A Toxic Brew: Judicial Elections in the Age of Big-Money Politics, in The Politicization of Judicial Elections and Its Effect on Judicial Independence, 60 Cleveland State Law Review 461, 2012.
[254] Sean Wise, MIT Published a List of the 9 Megatrends That Will Shape the World in 2030. Here’s What They All Have in Common, Inc.com, February 25, 2020; Andrew Winston, The World in 2030: Nine Megatrends to Watch, MIT Sloan Management Review, May 7, 2019.
[255] See generally: Robert D. Putnam, Bowling Alone: The Collapse and Revival of American Community (2001); Michael Woolcock & Deepa Narayan, Social Capital: Implications for Development Theory, Research and Policy, 15 World Bank Research Obs. 225 (2000); Robert D. Putnam, Making Democracy Work: Civic Traditions in Italy (1993); Brian O’Donnell, Civil Society: The Underpinning of American Democracy (1999); Susan Rose-Ackerman, Corruption: Greed, Culture and the State, 120 Yale L. J. Online 125 (2009); Larry J. Diamond, Three Paradoxes of Democracy, 1 J. DEM. 3 (1990); R. Wayne Thorpe (Chair, Section of Dispute Resolution), Report to the House of Delegates: Resolution 108, American Bar Association, August 2011; Daniel C. Préfontaine and Joanne Lee, The Rule of Law and the Independence of the Judiciary, World Conference on the Universal Declaration of Human Rights, Montreal, Canada, December 7-9, 1998; World Leaders Adopt Declaration Reaffirming Rule of Law as Foundation for Building Equitable State Relations, Just Societies, Sixty-seventh General Assembly, United Nations Plenary, UN.org, September 24, 2012; Guiding Principles for Stabilization and Reconstruction: Rule of Law, Section 7, United States Institute of Peace, usip.org; The Role of the UN in Promoting the Rule of Law: Challenges and New Approaches, UN Chronicle, December 2012.
[256] Jeffrey Sachs, Scott Pruitt sums up America’s big challenge, CNN, April 10, 2018. Also see, George Tyler, Billionaire Democracy: The Hijacking of the American Political System, BenBella Books, 2018; Alexander Burns, Jasmine Lee, and Rachel Shorey, Billionaire vs. Billionaire: A Tug of War Between 2 Rogue Donors, New York Times, April 12, 2018:
“Matthew Rothschild, executive director of the Wisconsin Democracy Campaign, which supports stricter campaign-finance regulation, said [billionaire] Mr. Uihlein’s political role showed how big donors had come to overshadow traditional political parties.
“The parties are increasingly irrelevant,” Mr. Rothschild said. “Billionaires can just set up their own organizations and just dominate a political campaign.”
Mr. Uihlein has done that to a great degree in Wisconsin this year, Mr. Rothschild said, by giving $3.5 million to a super PAC supporting Kevin Nicholson, a Republican running for the Senate. Mr. Nicholson faces a contested primary against a fellow Republican who is backed by a different billionaire.
Mr. Rothschild said voters should not mistake the emergence of competing billionaires as a sign that the campaign finance system is basically stable and fair.
“Our democracy is not supposed to be a tug of war between a couple of billionaires on the left and a couple of billionaires on the right,” he said.”
Also see, Jane Mayer, Dark Money: The Hidden History of the Billionaires Behind the Rise of the Radical Right, First Anchor Books Edition, 2016, 2017 (preface); Charles Kaiser, Dark Money review: Nazi oil, the Koch brothers and a rightwing revolution, The Guardian, January 17, 2016; Daniel Ben-Ami, Book Review: ‘Dark Money’, by Jane Mayer, Financial Times, March 11, 2016; Alan Ehrenhalt, ‘Dark Money’, by Jane Mayer, New York Times, January 19, 2016; Donald Gutstein, Harperism: How Stephen Harper and his think tank colleagues have transformed Canada, James Lorimer & Company Publishers, 2014; Bruce Livesey, How Canada made the Koch brothers rich, National Observer, May 5, 2015; Gerald Caplan, Harper is Right: Foreign radicals are after the oil sands, Globe and Mail, May 26, 2012; Daniel Tencer, Koch Brothers, Tea Party Billionaires, Donated To Right-Wing Fraser Institute, Reports Show, Huffington Post, April 26, 2012; Daphne Bramham, Lessons for Canada from how the Koch brothers hijacked democracy, Vancouver Sun, September 25, 2016; Elizabeth McSheffrey, Are the billionaire American Koch brothers playing climate politics in Alberta?, National Observer, January 13, 2017.
[257] Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018.
[258] Samuel Kronen, Bridging Our Political Divide: Uncivil Agreement by Lilliana Mason – Book Review, Areo Magazine, June 13, 2019. Also see, John Lorinc, The Prophet of Populism: Political scientist Yascha Mounk studies the signs of rising populism. What can his work tell us about Canada’s future?, The Walrus, October 17, 2019.
[259] See generally, Eric Sigurdson, A Toxic Brew: The Politicization of the Rule of Law and Judicial Independence, Sigurdson Post, September 30, 2018; Eric Sigurdson, Civility, Advocacy, and the Rule of Law: From Wall Street to Main Street, From the Boardroom to the Courtroom – lawyer civility is crucial in an uncivil world, Sigurdson Post, June 30, 2019; Eric Sigurdson, Civility, the Rule of Law, and Lawyers: the ‘glue’ that binds society against social crisis – is incivility the ‘ugly new normal’ in government, politics, November 25, 2016.
[260] Stephane Dion (Ambassador of Canada in Germany and Special Envoy to the European Union and Europe), European liberal democracies facing populism: Reasons for cautious optimism, Address at the Conference: Crying for respect, seduced by populism? Nationalism as a challenge to the European Project, Tubingen University, Government of Canada (canadainternational.gc.ca), March 18, 2019; Bojan Bugaric, The two faces of populism: Between authoritarian and democratic populism, German Law Journal, Vol. 20, February 2019; Hal Weitzman, The populism puzzle: What caused the uprising that has transformed the global politics, Chicago Booth Review, March 2, 2020; William Galston, The populist challenge to liberal democracy, Brookings, April 17, 2018; Torben Andersen, Giuseppe Bertola, etal, Economic Policy and the Rise of Populism – It’s Not So Simple (Chapter 2), EEAG Report on the European Economy, CESifo, 2017; Karl Aiginger, Populism: Root Causes, Power Grabbing and Counter Strategy, Intereconomics, Vol. 55, No. 1, 2020.
[261] Wayne Swan, Tax avoidance impoverishes us all. Fighting it requires challenging the powerful, Guardian, January 11, 2016.
[262] David Moscrop, Can democracy survive the coronavirus?, Maclean’s, April 1, 2020.
[263] Corruption Perceptions Index 2019, Transparency International, 2020. (citing Delia Ferreira Rubio, Chair, Transparency International).
[264] Stephane Dion (Ambassador of Canada in Germany and Special Envoy to the European Union and Europe), European liberal democracies facing populism: Reasons for cautious optimism, Address at the Conference: Crying for respect, seduced by populism? Nationalism as a challenge to the European Project, Tubingen University, Government of Canada (canadainternational.gc.ca), March 18, 2019.
[265] Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020. Also see, A More Perfect Union: America’s faith in democracy is fading. Daniella Ballou-Aares is leading a group of alumni in an ambitious effort to restore it, Harvard Business School, Alumni (alumni.hbs.edu), May 28, 2019.
[266] Karl Aiginger, Populism: Root Causes, Power Grabbing and Counter Strategy, Intereconomics, Vol. 55, No. 1, 2020; Stephane Dion (Ambassador of Canada in Germany and Special Envoy to the European Union and Europe), European liberal democracies facing populism: Reasons for cautious optimism, Address at the Conference: Crying for respect, seduced by populism? Nationalism as a challenge to the European Project, Tubingen University, Government of Canada (canadainternational.gc.ca), March 18, 2019; William Galston, The populist challenge to liberal democracy, Brookings, April 17, 2018.
[267] Robert Reich, How to End Crony Capitalism: When it comes to getting big money out of politics and ending crony capitalism, there’s no right or left, BillMoyers.com, October 26, 2017; David D’Amato, Don’t confuse the free market with crony capitalism, The Hill, March 30, 2017; Samuel Gregg, Crony Capitalism: Inefficient, Unjust, and Corrupting, Australian Institute, March 15, 2016; Don Pittis, Plutocrats with their crony capitalism are taking over again in the U.S., CBC News, February 20, 2017; Our crony-capitalism index: Planet Plutocrat, Economist, March 15, 2014.
[268] See generally: Eric Sigurdson, Taxation, Corporations, and the Financial Elite: a pathway for leadership, social responsibility, and economic growth – can society avoid the dangerous ‘race to the bottom’?, Sigurdson Post, March 31, 2019.
[269] Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020.
[270] Rebecca Solnit, President Trump is at war with the rule of law. This won’t end well, Guardian, October 9, 2019.
[271] Kenneth Roth, World Report 2017: The Dangerous Rise of Populism, Human Rights Watch, 2017.
[272] Brend Dowdall, The Chief Justice speaks out on judicial independence: Richard Wagner addressed concerns about threats to the rule of law at the CBA’s annual general meeting, National Magazine, February 20, 2020; Canadian Press, Chief justice Richard Wagner says judiciary must decide what training judges need, Globe and Mail, February 19, 2020. Also see, Chief Justice John Roberts, 2019 Year-End Report on the Federal Judiciary, Supreme Court of the United States (supremecourt.gov), 2019 (“we have come to take democracy for granted, and civic education has fallen by the wayside.”).
[273] Commentary on the IBA Council ‘Rule of Law’ Resolution of September 2005, Adopted by the International Bar Association on 8 October 2009, International Bar Association, October 2009; Rule of Law Initiative, American Bar Association (americanbar.org); ABA rolls out rule of law social media campaign, American Bar Association (americanbar.org), 2019.
[274] For example see: David McKnight, Murdoch’s Politics: How One Man’s Thirst for Wealth and Power Shapes Our World, Pluto Press, 2013; Andy Beckett, Murdoch’s Politics: How One Man’s Thirst for Wealth and Power Shapes Our World by David McKnight – review, Guardian, February 20, 2013; Paul Hartley, Murdoch’s Politics: How One Man’s Thirst for Wealth and Power Shapes Our World, Counter Fire, April 26, 2013; Ed Jones, Five reasons why we don’t have a free and independent press in the UK and what we can do about it, Open Democracy, April 18, 2019; Kevin Rudd, Democracy overboard: Rupert Murdoch’s long war on Australian politics, Guardian, September 6, 2019; David Beers and Charles Campbell, Save Canada’s News Media? Like We Said in 2005 …, The Tyee, February 24, 2016; Lawrence Martin, Canada’s media: A crisis that cries out for a public inquiry, Globe and Mail, February 2, 2016; Tom Ken, Concentration with convergence – Goodbye, freedom of the press, Policy Options, October 1, 2002; Andrew Harris-Schulz, Concentration of Newspaper Ownership in Canada: Postmedia & Sun Media, Medium, July 27, 2016. Also see, Monika Bauerlein, Billionaires Are Not the Answer, Mother Jones, December 6, 2019; Bill Moyers, Segment: How Big Money & Big Media Undermine Democracy, BillMoyers.com, November 8, 2013.
[275] Kevin Rudd, Democracy overboard: Rupert Murdoch’s long war on Australian politics, Guardian, September 6, 2019; Jennifer Oroilidis, Death of the Free Press, Newscoop, December 28, 2018; Rick Morton, Murdoch media fuels far-right recruitment, The Saturday Paper, August 10, 2019.
[276] Jennifer Oroilidis, Death of the Free Press, Newscoop, December 28, 2018; Bill Moyers, Segment: How Big Money & Big Media Undermine Democracy, BillMoyers.com, November 8, 2013; Anya Schiffrin (editor), In the Service of Power: Media Capture and the Threat to Democracy, National Endowment for Democracy (Center for International Media Assistance), 2017.
[277] Who owns the UK media?, Media Reform Coalition, 2015; Jennifer Oroilidis, Death of the Free Press, Newscoop, December 28, 2018; Anya Schiffrin (editor), In the Service of Power: Media Capture and the Threat to Democracy, National Endowment for Democracy (Center for International Media Assistance), 2017; Tom Ken, Concentration with convergence – Goodbye, freedom of the press, Policy Options, October 1, 2002; Mark Cooper, Media Ownership and Democracy in the Digital Information Age: promoting diversity with First Amendment principles and market structure analysis, Center for Internet & Society, Stanford Law School, 2003; Mark Edge, Can Canada’s media be reformed?, Canadian Centre for Policy Alternatives, July 1, 2016; Marc Edge, The News We Deserve: The Transformation of Canada’s Media Landscape, New Star Books Ltd., 2016; Des Freedman, The public says: break big media monopolies and help new journalism projects, The Conversation, April 1, 2015. Also see, Jonathan Mahler and Jim Rutenberg, How Rupert Murdoch’s Empire of Influence Remade the World, New York Times, April 3, 2019.
[278] Rebecca Henderson, The Business Case for Saving Democracy: Why free markets need free politics, Harvard Business Review, March 2020.
[279] How to Strengthen Democracy, the Rule of Law and Fundamental Rights – Tools Discussed in a Presidency Conference, Finland’s Presidency of the Council of the European Union (eu2019.fi), September 11, 2019; Sharon Thiruchelvam, Protecting the rule of law from populist threats, Raconteur, February 7, 2018; Tom Bingham, The Rule of Law, Allen Lane (UK), 2010.
[280] Sharon Thiruchelvam, Protecting the rule of law from populist threats, Raconteur, February 7, 2018.
[281] David Moscrop, Can democracy survive the coronavirus?, Maclean’s, April 1, 2020.
[282] Rule of Law & Democracy, Rule of Law Alliance (rolalliance.org); Massimo Tommasoli, Rule of Law and Democracy: Addressing the Gap Between Policies and Practices, UN Chronicle, United Nations (un.org), December 2012.
[283] How to Strengthen Democracy, the Rule of Law and Fundamental Rights – Tools Discussed in a Presidency Conference, Finland’s Presidency of the Council of the European Union (eu2019.fi), September 11, 2019.
[284] Rule of Law Alliance, rolalliance.org. Also see, Massimo Tommasoli, Rule of LAW and Democracy: Addressing the Gap Between Policies and Practices, UN.org; Sustaining Democracy through the Rule of Law, Canadian Bar Association, January 2007.
[285] How to Strengthen Democracy, the Rule of Law and Fundamental Rights – Tools Discussed in a Presidency Conference, Finland’s Presidency of the Council of the European Union (eu2019.fi), September 11, 2019.
[286] Kevin Wack, American Justice Isn’t Impartial Anymore, The Atlantic, February 12, 2020.
[287] David Moss, What’s Wrong with U.S. Politics, Harvard Business Review, March 2012.
[288] Bob Abeshouse, The Disunited States” How partisan politics is polarising the US, Aljazeera.com, August 2, 2019. Also see, Professor Lilliana Mason, Uncivil Agreement: How Politics Became Our Identify, University of Chicago Press, 2018.
[289] Evan Dyer, An ill wind: the pandemic is giving states political cover for controversial acts, CBC News, April 23, 2020; Joseph Arvay and David Wu, As civil liberties erode, Canada must not allow COVID-19 outbreak to infect the rule of law, CBC, March 26, 2020; The state in the time of Covid-19, The Economist, March 26, 2020; Hadani Ditmars, Governments making power grabs, repressing dissent while world focuses on COVID-19, CBC News, April 18, 2020; Mark MacKinnon and Nathan Vanderklippe, How the coronavirus pandemic is making strongmen stronger, from Hungary to Serbia to the Philippines, Globe and Mail, April 6, 2020; Wendy Mariner, George Annas, and Wendy Parmet, Pandemic Preparedness: A Return to the Rule of Law, 1 Drexel Law Review, 341, 2009; Jaka Kukavica, Rule of Law in the Time of Covid-19: Warnings from Slovenia, Verfassunglsblog, March 25, 2020; Afua Hirsch, The coronavirus pandemic threatens a crisis for human rights too, Guardian, March 19, 2020; Keno Verseck, Coronavirus: Rule of Law under attack in southeast Europe, DW.com, March 24, 2020; Lydia Gall, Hungary’s Orban Uses Pandemic to Seize Unlimited Power, Human Rights Watch, March 23, 2020; Borzou Daragahi, Coronavirus could be used by authoritarian leaders as excuse to undermine democracy, experts warn, Independent, March 17, 2020; Oliver Moody and Hannah Lucinda Smith, Strongmen thrive as coronavirus kills of checks and balances, The Times (thetimes.co.uk), March 30, 2020; Amanda Terkel, GOP Quietly Pushes Through Long-Sought Priorities As Pandemic Rages, Huffington Post, April 22, 2020; David Smith and Emily Holden, In shadow of pandemic, Trump seizes opportunity to push through his agenda, Guardian, April 9, 2020; Borzou Daragahi, Coronavirus could be used by authoritarian leaders as excuse to undermine democracy, experts warn, Independent.co.uk, March 17, 2020.
[290] Oliver Moody and Hannah Lucinda Smith, Strongmen thrive as coronavirus kills of checks and balances, The Times (thetimes.co.uk), March 30, 2020. Also see, Philippe Fournier, 338Canada: Canadians are overwhelmingly satisfied with their governments’ COVID-19 responses, Maclean’s, April 13, 2020; Editorial, You don’t stop a virus by bleeding democracy, Globe and Mail, April 13, 2020.
[291] Steve Benen, Adding fuel to fire, AG Barr orders closer look into Flynn case, MSNBC, February 14, 2020; Will Bunch, Trump’s banana republic: Police state for the poor, free pass for president’s pals and the rich, Philadelphia Inquirer, February 13, 2020; Michael Hobbes, The Golden Age of White Collar Crime: Elite lawbreaking is out of control, Huffington Post, February 10, 2020; Paul Brandus, Trump’s pardons demonstrate his belief that white-collar crime isn’t real crime, MarketWatch, February 19, 2020;
[292] Jake Johnson, ‘This is Corruption’: Trump and Barr Accused of Blatant Abuse of Power as DOJ Intervenes to Reduce Roger Stone Sentence, Common Dreams, February 12, 2020. Also see, Boris Johnson takes on the judges: The government wants to restrict the power of the judiciary. It shouldn’t, Economist, February 20, 2020; Laura Hughes, Kate Beioley, and Jane Croft, Questions raised over attorney-general’s independence, Financial Times, February 17, 2020.
[293] Matt Ford, Donald Trump and the Absolute Power of Presidency, The New Republic, November 18, 2019; Economics, demography and social media only partly explain the protests roiling so many countries today, The Economist, November 14, 2019; How bad is the crisis in democracy?, The Economist, youtube.com, September 26, 2019; Democracy embattled: How bad is the crisis?, Democracy Digest, January 6, 2020 (“Around the world, democracies are getting weaker and elected politicians are becoming more unpopular. Are they serving the people – or themselves?”).
[294] David Leonhardt, The Sense of Justice That We’re Losing, New York Times, April 29, 2018; Economics, demography and social media only partly explain the protests roiling so many countries today, The Economist, November 14, 2019; How bad is the crisis in democracy?, The Economist, youtube.com, September 26, 2019; Democracy embattled: How bad is the crisis?, Democracy Digest, January 6, 2020 (“Around the world, democracies are getting weaker and elected politicians are becoming more unpopular. Are they serving the people – or themselves?”).
[295] Peter Loewen, Taylor Owen, and Derek Ruths, Covid-19 is helping to unite Canadians like nothing has in years – and we’ll need unity for what’s to come, CBC News, April 9, 2020.
[296] Andrew Coyne, Our way of life is fragile. Only trust can preserve it, Globe and Mail, March 13, 2020.
