The State of the Rule of Law: Insights from Arizona Supreme Court Justice Clint Bolick | May 13, Phoenix, AZ

Thank you all for being here tonight. What an incredible group of distinguished people. And, I know that you all share my passion for the rule of law.

Gregg was telling me earlier that this is the Society’s first event outside Washington, D.C., so I’m really grateful that they’ve decided to make their inaugural presentation here. And, I hope that Gregg will agree, and this is based on my own personal experience, that Washington, D.C. never looks better than as it recedes in your rearview mirror. So, hopefully you’ll like it here. And we could use more rule of law folks here.

It’s also bittersweet to be here. On the one hand, I am so grateful that the Society exists. These are my people. Many of the founders of the Society also, as I did, served as young lawyers in the Reagan administration. And we shared a common set of principles and ideals. But it’s bittersweet because I wish this organization didn’t need to exist. The idea that right-of-center lawyers would have to join together to defend the rule of law, sometimes against people who describe themselves as constitutional conservatives, is just really head-spinning to me. It’s almost dystopian. And, when I think of people wrapping themselves in the Constitution while they are simultaneously doing violence to it, it makes me wish that I was back in private practice again so that I could represent the Constitution in a defamation action. Because certainly it has suffered. It has suffered great damage.

Although I have always held myself and my side to a higher standard than the other side, because I feel like they know better, I want to emphasize at the outset that this is neither partisan nor really ideological.

As Gregg mentioned, last year, I faced a crucible that I did not want to face. And it was primarily a campaign against my colleague Justice Kate King and me from the left, disagreeing with a decision that we made that was very much, in my opinion, a rule of law decision. In fact, I don’t think there was a single instance in which it was attacked on the merits. It was simply the outcome and the effects of the decision. And as judges, we are sworn to the Constitution and to the law, not to political outcomes. And it was very, very difficult to go through that. My son Ryan knows how much I did not want to go through that.

But three of the most important women in my life, my mother-in-law, my colleague Justice King, and my wife Shawnna, who will be joining us shortly, I think, basically said, “You have to do this.” And I am very glad that I did it in retrospect. But I now look back on that experience, which was very unpleasant, and thought, you know what, maybe that was just a warm-up act for what has to come. And I really hope that that is not the case. But I fear it may be.

I want to talk to you tonight, before Gregg and I have a conversation and then invite you all to join it, I want to talk about two cases that I think are really emblematic about what is at stake in terms of the independent judiciary, particularly in checking the powers of the executive branch. And also two events that also exemplify that, and unfortunately exemplify how things have changed.

You know, I always love to have conversations about first principles. I think that we should always do that. We should always question whether received wisdom is in fact wisdom. But hearing conversations about Marbury v. Madison and whether there is a judicial role in constraining the excesses of the executive, this is not a new thing.

We brought this with us when Americans broke away from England. Courts protecting against the power of the executive in England was a very, very important feature, and our founding fathers enshrined that in the Constitution and spelled it out very eloquently in Federalist 78. If there’s anyone among you who has not read that magnificent paper, I encourage you to read it, or to reread it, because it made very clear from the outset that the independent judiciary was going to be absolutely necessary to make sure we never had a monarchy. We never had an autocratic system of government.

What was innovative about that was not arresting the power of the executive, but arresting the power of the elected representatives. That was the American innovation. But it was always accepted that the courts would bind the power of the executive.

In the 1940s and 50s, we had two cases that really tested this with incredibly important ramifications. One is one of the worst decisions in the history of American jurisprudence. And before I get to that, I do want to welcome and introduce my personal hero, Senator, and my dear wife, Shawnna Bolick, who just joined us. I don’t have very many political heroes, but she is foremost among them.

Well, the first case was the infamous case of Korematsu v. United States, which, of course, involved an executive order and military orders that led to the incarceration of loyal Japanese American citizens. Certainly one of the great stains on our constitutional jurisprudence. That case was decided by a 6–3 vote. Happily, in recent years, it was finally overturned and is no longer good law.

Justice Robert Jackson, one of the greatest people ever to serve on the United States Supreme Court, had such an incredible insight about this case. He said:

“Much is said of the danger to liberty from the army program for deporting and detaining these citizens of Japanese extraction, but a judicial construction of the Due Process Clause that will sustain this order is a far more subtle blow to liberty than the promulgation of the order itself. A military order, however unconstitutional, is not apt to last longer than the military emergency. But once a judicial opinion rationalizes such an order to show that it conforms to the Constitution—or rather rationalizes the Constitution to show that the Constitution sanctions such an order—the Court for all time has validated the principle in this case of racial discrimination in criminal procedure and of transplanting American citizens. The principle then lies about like a loaded weapon ready for the hand of any authority that can bring forward a plausible claim of an urgent need.”

Sound familiar? These words were prescient in 1944.

Eight years later, also a 6–3 decision, couldn’t have been more different. President Harry Truman, conducting the Korean War, was worried about labor unrest that threatened steel production. He issued an executive order seizing the Youngstown Steel company, and Youngstown Steel went to court.

This time, the Supreme Court said no. Even though the president has broad military authority, his broadest authority, he does not have the power to seize private property toward the ends to which he wants to put it.

Again, Justice Jackson, this time joining the majority, said:

“With all its defects, delays and inconveniences, men have discovered no technique for long preserving free government except that the Executive be under the law and that the law be made by parliamentary deliberations. Such institutions may be destined to pass away, but it is the duty of the Court to be the last not the first to give them up.”

I think these decisions and these incredible words from Justice Robert Jackson really exemplify why it is that we need courageous courts that will hold the other branches to the boundaries of their constitutional authority, while themselves keeping themselves to the judicial function. There is so much to debate within those parameters, but the idea that the courts cannot arrest the constitutional excesses of the other branches of government should not, in my opinion, be up for debate.

The two events I wanted to mention occurred within 20 years of each other as well. A lot of times, when I lived in Washington, D.C. for 16 years, I used to play softball on the Capitol Mall. Some of you who have spent time in D.C. may have done that. It’s an amazing scene of spontaneous order where people just set up non-existent softball fields on the Mall. There’s not quite enough room, so the games overlap with other games. And when you’re in the outfield, you are staring at other outfielders from other games that are going in the other direction. Incredibly dangerous, but an awful lot of fun. And, you know, there’s paths where people are walking. I remember one time James Carville picked up a foul ball that someone had hit and threw it back in. Even at a distance, you can tell it’s James Carville.

In any event, I remember one time playing softball in the lovely Washington humidity, and I noticed this big diagonal slash on our makeshift field. I’m like, what is that? And I traced it to its source, and it was the Washington Monument. I was thinking to myself, wow, we are playing literally in the shadow of the Washington Monument. And until now, I didn’t even notice it. I just take it for granted.

And that is how we act toward our courts and our justice system. We take it for granted. It is an amazing attribute of American exceptionalism that we settle our disputes in court, not on the streets. That makes us so different from so many other countries. And also that we can walk into court, whether it’s a personal injury dispute, whether it’s a divorce, whether it’s a criminal infraction, and there is a level playing field and the scales of justice are balanced.

I can attest to this because I spent decades representing David against Goliath and winning more often than I probably deserve to. That is something we can’t afford to take for granted, because it is always in jeopardy.

I talk to my students, to whom I teach Con. Law—and a number of them are here tonight—and I used to talk to them about the 2000 presidential election. Those of you who are old enough to remember that election remember it came down to a few hundred votes in Florida, the so-called hanging chads. I don’t think anyone has named their kid “Chad” since that election. They came in for so much ridicule. The case ultimately went to the United States Supreme Court, and the Supreme Court, by a 5 to 4 majority, voted that George W. Bush, who had received fewer popular votes but more electoral votes than Al Gore, the Democratic candidate, would be the President of the United States.

If that happened in hundreds of other countries, that the candidate to receive fewer votes was named president by the Supreme Court, just think of what would have happened. There would have been riots in the streets. Instead, what did happen? Al Gore said, “Thank you. I appreciate the opportunity to have run for President of the United States. Congratulations, Mr. Bush. I’m going home now.”

Fast forward 20 years to January 6th, 2021. We did not settle our dispute in the courts of law as a final matter. And I have to say that as an American, I am so deeply embarrassed at what happened that day. Not just the storming of the American Capitol, not just bringing a Confederate flag into our nation’s Capitol, which didn’t even happen during the Civil War, and seeing people who professed to be conservatives assaulting police officers. But not only that, incredible pressure being put on the Vice President of the United States to be the first person to prevent the peaceful transfer of power from one administration to the other since attempts were made on President-elect Lincoln’s life back in 1860.

This imagery to me is very, very deeply disturbing. But it shows, I think, that the rule of law is very vulnerable, and we have seen examples of that since then. We have seen the words “due process” appear in quotes repeatedly, as if this concept was created by rogue liberal judges to help illegal immigrants stay in the country. Due process is the most foundational legal principle protecting individual liberty in Western civilization. It dates back to the Magna Carta. It does not deserve to be in quote marks, air quotes, or quotes in op-ed pieces.

Most recently—and I know you all know this, but I want to read the exact words because they are so deeply disturbing—a high-ranking administration official said, “Well, the Constitution is clear and that of course is the Supreme Law of the Land.” So far, so good. “That the privilege of the writ of habeas corpus can be suspended in a time of invasion. So that’s an option we’re actively looking at. Look, a lot of it depends on whether the courts do the right thing or not.”

Regardless of how you read that—one, that they’re seriously considering suspending the writ of habeas corpus, or two, that they are using that to intimidate the courts to reach decisions that they favor—either way, it is really scary stuff.

I believe that judges need to play a very important role in defending the independent judiciary. Obviously, we are very constrained on what we can say, and so our actions speak louder than our words. And I know my fellow judges here in Arizona, we can count on them to preserve the rule of law and to exemplify what the rule of law is all about.

But we do need to defend ourselves, which is why I sought retention last year and why I spoke out very vigorously in support of an independent judiciary at that time, and that’s why I’m doing it now. But even more than that, the legal profession is the only private profession in the country whose members have to swear an oath to the Constitution of the United States.

Those of you who are lawyers, or who are aspiring lawyers, or who are married to lawyers, you really are at the front lines. One of the things we learned, despite the perfect storm last year when my colleague and I were up for retention and we were being attacked by some on the right as well as many on the left—I did not think that we were going to win, especially given that the issue on which the campaign against us was being mounted was also on the ballot and passed. The abortion amendment passed overwhelmingly. So that meant that a huge number of people had to vote for that amendment and for the justices who voted to essentially repeal limitations on abortion.

And what that showed me was that there is a popular consensus supporting the independent judiciary and the rule of law. But there is no one more equipped to spread that message and how very important it is than lawyers and others who work with lawyers.

It is a great story to tell. Do judges sometimes screw up? Absolutely. Mea culpa. Do judges sometimes give in to their personal predilections? Too often they do. But overall, there is no judicial system on earth that I would trade for ours. And if you believe in individual liberty—and I suspect everyone in this room fervently does—standing up for the rule of law and the independent judiciary, no matter who is attacking it, is an absolute priority.

And so for that reason, it is an honor to be among you. And I would just close with the words: Count me in.

Thank you very much.

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