Last week the CEO of United Healthcare was assassinated in midtown Manhattan. A surprising number of reactions amounted to some variant of “he had it coming.” Why were people defending what appears to be a vigilante killing? Because the rule of law in the US has been undermined by a pervasive sense that the justice system is rigged to protect the rich and powerful and their interests. There appears to be no accountability for them while ordinary citizens find themselves subjected to abuse by corporations and by the state with no or limited recourse.
The rule of law is the concept that everyone in society should be subject to the same set of laws and that these should be equally and justly applied to individuals and institutions independent of such factors as wealth, celebrity, or power. Or as it is sometimes stated “no one is above the law.” Achieving some semblance of the rule of law is a major accomplishment of modern civil societies compared to systems based on the much older principle of “might makes right.” The rule of law is crucial to maintaining a well functioning democracy (more on that later). In the Western world, one early step towards the rule of law was the Magna Carta under which the King was to be accountable to a council of 25 barons.
For the rule of law to be recognized it needs to succeed in substance and not just in form. This means the system needs to produce accountability. Because only actual accountability can ultimately influence behavior. A child that is told that there will be consequences for bad behavior but those never come will learn that bad behavior is completely acceptable.
One longstanding challenge to the functioning of the rule of law in the United States has been the impact of wealth inequality. This ranges from what types of crimes are being prosecuted in the first place to what outcomes can be achieved depending on the financial resources of the parties. For example, why were hardly any bank executives prosecuted following the Global Financial Crisis? Why is it that well funded defendants, such as large corporations, can simply run out the clock on cases as litigants go bankrupt and in some cases of health insurance simply die? (Note: I am covering the more recent somewhat inverse case of local crimes like shoplifting not being prosecuted later).
Another massive challenge to the rule of law comes from the extra judicial exercise of power by government. The biggest failure here is civil forfeiture in which government seizes assets from people simply suspected of a crime. This is the opposite of “innocent until proven guilty” and has grown massive to the point of exceeding the scale of burglary (by some measures). Another example is debanking of people under the original Operation Chokepoint which despite being investigated and heavily criticized has continued in various forms, most recently with the debanking of individuals engaged with crypto, as well as the shut down of entire crypto-favorable banks.
Yet another way the rule of law has been undermined is by the legislative and executive branches exempting themselves from the law. One egregious example here is the lack of insider trading restrictions for elected officials, who often have access to information not available to the general public. Another problematic exemption is the qualified immunity enjoyed by police and other government officials.
Instead of attempting to fix some of these glaring problems, politicians from both sides of the aisle have contributed to the further hollowing out of the rule of law.
Democrats under President Clinton wanted to wrest being tough on crime away from the Republicans and passed the 1994 crime bill that furthered the growth of mass incarceration. At the same time Democrats were time and time again lenient on any prosecution of white collar crimes, culminating in President Obama choosing to bail out Wall Street during the Global Financial crisis while not having the Department of Justice go after the responsible management (literally only a single lower level person went to prison). At the state and local level some Democratic District Attorneys in an ill-advised strategy against mass incarceration stopped prosecuting certain crimes which left communities exposed to corrosive levels of crime. This too has been seen by many as an example of someone powerful (here DAs) getting away with their agenda at the expense of ordinary citizens.
Republicans have done their bit by railing against activist judges only when it suits them but then happily supporting the same approach when it aligns with their views. Republicans similarly have been harsh on crime when it comes from ordinary citizens but have protected white collar criminals. President Trump took the denigration of justices and attacks on their families to new levels. As an aside, Trump was notorious for not paying contractors and letting them sue him knowing they would run out of money.
Presidents from both parties have increasingly used their pardon power to let family members and supporters escape accountability. Examples here abound with most recently Biden pardoning his son, Trump pardoning his father-in-law, Clinton pardoning Marc Rich (after major donations by Denise Rich to the Democratic party), to name just a few.
The results of all of this has been a justified erosion in public perception of the rule of law. Trust and confidence in the judicial branch of government collapsed in the last four years.
What’s especially troublesome is to see this broken down by demographics, with nearly half the people under 29 no longer trusting the judiciary.
All of this is deeply problematic because the rule of law is integral to a well functioning democracy. In its absence, the office of the President with its already extensive power will become ever more unrestricted. The Supreme Court decision which extended broad immunity to the President for acts taken as part of his official constitutional duties has also pushed the US further in that direction. Interestingly, one corrective here will be some of the other recent Supreme Court decisions reducing the power of the administrative state, such as the repeal of Chevron Deference and several cases of extending the right to sue federal agencies.
What is to be done? There is no silver bullet here. Instead, as with all other aspects of the huge transition we are finding ourselves in, we need to start by strongly reasserting the rule of law as a foundational principle of democracy and civil society. From there we can take lots of actions such as voting for candidates who will work on the issues outlined above to smart people going to law school not to make tons of money at a big law firm but to become judges or start/join firms taking on the cause of ordinary people.
