Democracy’s Last Line of Defense: Preserving an Independent Judiciary

Authoritarianism and weakened justice systems continue to erode the rule of law globally–but not universally. Taking cues from the communities resisting these trends can pave the road forward, according to the World Justice Project (WJP) Executive Director Elizabeth Andersen.

On March 13, Andersen addressed judicial, legal, and academic leaders at the National Judicial Conference’s symposium on “Democracy’s Last Line of Defense: Preserving an Independent Judiciary" in Boston. 
 
An abridged version of her speech follows.

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If, as our conference theme suggests, the judiciary is democracy’s last line of defense, then it’s time to man (or woman) the barricades.

We are in a global rule of law recession. Our latest WJP Rule of Law Index, published last October, was the sixth in a row to find a majority of countries with declining rule of law. Fifty-nine percent of countries, home to over 6 billion people, saw rule of law decline between 2022 and 2023. This includes the United States, which ranks 26th out of the 142 countries we survey.

We see the persistent and widespread negative trends in every region of the world and every level of country income. In seven of the eight rule of law factors we measure,  a majority of countries have seen their scores decline since 2016; only “order and security” saw a slight majority improving. The negative trends have been particularly sharp and widespread in our measures of fundamental rights, constraints on government powers, corruption, and the functioning of justice systems.

With respect to justice systems, the negative trends relate most notably to increased delays, discrimination, and improper government influence in judicial decision-making. Since 2016, more than 65% of countries experienced declines in these areas and the declines were quite steep, on average.

The United States is no exception to these trends, nor is its justice system.

As I mentioned, the U.S. ranks 26th in the 2023 WJP Rule of Law Index. Since 2016, it has dropped four places in the Index ranking, and its score is down 5% overall. We have seen a particularly sharp drop in the U.S. score for “constraints on government powers”–down 15% since 2016, with a 16% decline in the sub-factor measuring judicial constraints on executive power; only fifteen countries in the world have seen a sharper decline in this metric over this period. One of the survey questions we ask is whether people think a high government official who commits a crime will be held accountable; when we asked that question in 2014, 60% considered the official likely to be held accountable; in 2021, it had dropped to 24%.

Other areas of particularly steep rule of law erosion in the US have been “fundamental rights”–down 9%; and “criminal justice”–down 11%. 

This recent deterioration compounds other more longstanding weaknesses in the rule of law in the United States with respect to access to justice and discrimination. 

On affordability and accessibility of the justice system, the U.S. ranks 115th out of 142 countries in the Index.

Our country ranks 106th on overall discrimination, and 124th on discrimination in the civil justice system.

What is to be done?

Now this is hardly light and cheerful cocktail party talk, so lest I be accused of being the skunk at the garden party, let me close with some hopeful and encouraging words to launch our conference.

Notwithstanding the widespread negative global rule of law trends, we do see jurisdictions that are bucking the authoritarian tide and are making steady rule of law progress. 

They provide some lessons that we might take to heart in our deliberations tomorrow:

First, leadership matters, including judicial leadership. We speak about the rule of law in terms of laws, institutions, and norms, but of course it is individuals who take decisions that breathe life into the rule of law and make it real. These rule of law leaders often take decisions contrary to personal interest and even at great personal risk, and their contributions are too often unrecognized. But research–and our own lived experience here in the United States in recent years–highlight many cases in which principled individual leadership made all the difference. The American Bar Association has recently announced a terrific initiative in this regard–an award, to be presented at this year’s annual meeting in Chicago in August, celebrating “Unsung Heroes of Democracy,” to highlight the contributions of the poll workers, community leaders, educators, civil servants, and others who stand up for the rule of law and make our democracy work. If you know of deserving candidates from your community, I encourage you to nominate them. 

Second, as the “Unsung Heroes” project reflects, upholding the rule of law is a broadly distributed responsibility. Progress often happens at the local level, and it is not just a matter for judges and lawyers. Yes, the judiciary may be the last line of defense, but strengthening the rule of law requires the contributions of many others too; it is a whole-of-community effort. This is why the sessions tomorrow on upholding the rule of law through state constitutions and on engaging the media and bar leaders in community outreach are spot-on and promise important insights and ideas we can take forward.

A third lesson from jurisdictions where we see rule of law progress is that to gain the necessary broad-based societal support, the rule of law must be seen and experienced to deliver tangible benefits in people’s everyday lives. When people take to the streets and to the polls to defend the rule of law, it is because they see a threat to something they care about. Unfortunately, in many jurisdictions, including the United States, polls suggest that a growing number of people, especially young people, do not value the rule of law and democracy, and many say they would even prefer an authoritarian approach to governance, at least if the authoritarian were on their side. 

To some extent, this is a function of educational gaps–people do not understand the rule of law or take it for granted–and civics education and media and community engagement are important antidotes. 

But we also need to acknowledge that for many in the United States, the rule of law and our justice system are not delivering. The vast majority of Americans lack access to justice to solve their everyday justice problems–issues relating to money and debt, consumer disputes, housing, and family matters. This justice gap has profound social and economic impacts in people’s lives. In surveys conducted by WJP, 66% of US respondents said they’d had a justiciable legal problem in the past two years, but less than half had been able to resolve it, only 33% were able to obtain help to do so, and most often they turned to a family member or friend, not to a lawyer, court, or governmental body. Forty-five percent said they had experienced a negative consequence from this unmet legal need, including ill health, loss of housing or employment, or relationship breakdown. All of this is worse for poor and traditionally marginalized populations, exacerbating feelings of exclusion and undermining trust in institutions. As Attorney General Merrick Garland has put it: “trust in the rule of law–the foundation of American democracy–depends upon the public’s faith that government seeks equal justice for all…. But without equal access to justice, the promise of equal justice under law rings hollow.”

So, while it may feel like the house is on fire, and we rightly focus on short-term challenges, such as maintaining the rule of law through a hotly contested presidential election, let me also encourage us all to keep in our sights the long-standing structural weaknesses in the rule of law in the United States. Addressing these is essential to building broad constituencies for the rule of law and our justice institutions that can ensure resilience against authoritarian shocks.

Finally, strengthening the rule of law is a long term, never-ending project. The WJP data show that in most jurisdictions, the rule of law ebbs and flows, and sustaining relatively strong rule of law requires constant vigilance and perpetually renewed leadership and initiatives to address weaknesses that emerge.

This is why we are so fortunate to have institutions such as the National Judicial College and convenings such as this conference–to renew our commitment and redouble our efforts to reinforce this essential foundation of our democracy.

The World Justice Project is proud to be your supporter and partner in these efforts, and I look forward to a fruitful conference.

 

Explore U.S. rule of law data in the 2023 WJP Rule of Law Index.