Page 74 - ACTL Journal_Sum24

There is no doubt that the public’s views have, and should have, a seat at the justice system’s table. What they should not have is a veto. Independent judges who are not politically compliant are not anti-democratic; they’re doing their job. And if judges don’t protect rights fearlessly, then neither civil rights nor human rights nor the democracies they serve have a chance.
And no wonder. For the last two or three decades, we’ve been hearing from a very boisterous and vociferous segment of the public warning that there was an anti-democratic, socially hazardous, turbulence in the air. The critics made their arguments skillfully. They called the good news of an independent judiciary the bad news of judicial autocracy. They called women and minori- ties seeking the right to be free from discrimination special interest groups seeking to jump the queue. They called efforts to reverse discrimination, like affirmative action, reversed discrimination. They said courts should only in- terpret, not make law, thereby ignoring the entire history of the common law. They called advocates for diversity biased, and defenders of social stagnation impartial. They claimed a monopoly on truth, used invectives to assert it, then accused their detractors of personalizing the debate. They preferred ideology to ideas, replacing the exquisite, democratic choreography of checks and bal- ances with a myopic march of majoritarianism.
And that brings me, finally, to what I see as the fragility of justice in too many parts of the world where democratic institutions and values are being thrown under the bus, victims of political bullying, and moral atrophy. Sometimes, it must be said, by judges who seem not to understand that you grow rights; not shrink them. We’re at the edge of a future unlike any I’ve seen in my lifetime. It’s divisive, polarized, self-righteous, and very dangerous. We seem to be trapped in a rhetorically tempestuous climate, polluted by obtuse shibboleths. A climate where history is irrelevant, people and ideas are cancelled, respect is invisible, lives don’t matter, truth is homeless, and unjustifiable conduct like rape or hostage-taking is justified.
It’s worth remembering that just over seventy-five years ago, a couple of years after I was born, a magnificent consensus resulted in the universal declaration of human rights; the phoenix that rose from the ashes of Auschwitz, declaring that there were to be no more killings or human rights abuses. They were our generation’s acknowledgment that what happened to Jews in World War II would never be permitted to happen again to anyone. So we set out to eradicate antisemitism, racism, homophobia, Islamophobia, sexism, and in- tolerance, generally. That was our designated trajectory and it was to be the inspiration for the world’s conscience.
We made a commitment to humanity then that we would protect the world from inhumanity. Yet, justice seems to be in crisis everywhere. There isn’t even a consensus about what justice means or what truth means or what democracy means or even what law is for. In this mean spirited free for all, everyone is talking to their own silo and no one is listening. Too often, law and justice are in a dysfunctional relationship. Too many governments have interfered with the independence of their judges and media. Too many people have died and too many people have lost hope.
It’s a new status quo where anger triumphs over respect, indignity triumphs over decency, and injustice is tolerated and tolerance is not. We need to put justice back in charge and to do that we need to put compassion back in the ser- vice of law and law in the service of humanity. We need the rule of justice, not just the Rule of Law. Otherwise, what’s the point of law or law- yers or a legal system? What good is the Rule of Law if there’s no justice? It’s time to stop yelling and start listening to each other; and to reclaim ownership of the compassionate liberal demo- cratic values we fought World War II to protect. And to put humanity back in charge by replac- ing global hate with global hope.
Let me conclude with a story taken from a book called Fragments written several years ago. The book is hopelessly mired in controversy
over its authenticity but I found the language and imagery compelling. The title of the book comes from the fragments of memories the man said he recovered in recent years, memo- ries relating to the years he spent from a young age in concentration camps.
After the War, the young boy was placed in a foster home in Switzerland. The brutality of the only life he had ever really known left him totally unprepared for the civility of his new surroundings. School, in particular, was utter- ly bewildering. And hence, the story about the day he was totally humiliated by his teacher in front of a giggling classroom when he was asked to identify a colored poster of the Swiss hero, William Tell, of whom of course he had never heard.
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