Rule of Law vs Rule by Law

 

Rule of Law vs Rule by Law

When Autocracy replaces Democracy

When George Washington first led the nation, he was faced with a monumental task, one rather unfamiliar in his era: governing a nation as a democracy. He refused to serve more than two terms, rejected the possibility of being named “king,” and showed a particular distaste for political parties. As the Constitution gave him the power to appoint federal judges for lifetime appointments, he required the “advice and consent” of the Senate… and little more. There were no subcommittee screenings; it was straight up and down Senate vote. Washington believed such votes should only be focused on the nominee’s character (generally assumed to be good), eschewing pollical affiliation and a detailed analysis of the nominee’s political biases. He found the British party-driven Parliament to be deeply antidemocratic.

By the time FDR became president, there were Senate Judiciary Committee reviews, and the generally accepted notion was that Republicans nominated Republican judges, and Democrats nominated Democratic judges. FDR appoint eight Supreme Court Justices over his twelve years in office, the most of any president. While his appointments helped him make wartime restrictions that were hardly democratic, the Court often disagreed with him, frequently limiting the reach of his New Deal, for example.

Today, despite a (mis-)belief of judicial neutrality, a study (reported in the February 20, 2024 Public Law Library) conducted by Harvard Law Professor, Alma Cohen, “examined 630,000 federal appeals court cases from 1985 to 2020. Cohen found that party affiliation had a far-reaching impact on decisions, beyond just controversial issues like gun control or abortion. She concluded that judges appointed by Democratic and Republican presidents consistently differed in their tendency to side with the weaker party.

“Cohen’s research revealed that panels with more Democratic judges were more likely to make decisions favoring individuals in civil litigation against institutions like corporations or the government. The same pattern emerged in criminal appeals, immigration appeals, and prisoner litigation. In fact, an all-Democratic panel was twice as likely to rule in favor of immigrants in immigration cases as an all-Republican panel… Critics of previous studies that examined the partisan differences among judges argued that unpublished decisions were not taken into account. However, Cohen’s work showed similar partisan effects among both published and unpublished decisions, as well as unanimous and divided panels.”

Who creates the laws, and their reference points and political, legal or cultural limitations determine rule of or by the law. A theocracy, like Iran, elevates Quranic law, as interpreted by Shia’s highest theologians above any laws created by human beings. Germany’s Nazi Party also had a legal system, but its laws were applied to amplify individual power and the party of the Fuhrer himself. When the law emanates from a single leader, one who cannot be contained by a judicial system, that is clearly rule by law. The LexisNexis Rule of Law Foundation determined that “rule of” requires examination of four core values, noting that “The stronger each of these components are, the greater the rule of law.

• Equality Under the Law - All people, businesses and governments are accountable, and the law applies to everyone in the same way, no matter who you are.
• Transparency of Law - Laws must be clear, precise, affordable and accessible while protecting fundamental human rights.
• Independent Judiciary - An independent judiciary ensures equality and fairness of law between people and public officials.
• Accessible Legal Remedy - There must be access to timely resolution in a court of law.”

It is little wonder, then, a move to autocracy almost always starts with the wannabe dictator’s attack on the judiciary. It can be personal attacks on individual judges… or attacks on the “integrity” judicial decisions. If a government can simply ignore a judicial decision or appoint judges who are merely rubber stamps to the determination of a unilateral authority, that system of government cannot protect its citizens from the arbitrary application of the law, an essential trait for “Rule of.” Recent decisions of Trump’s reconfigured Supreme Court reflects partisanship on steroids and an overt deference to a single, supreme authority figure: The President.

That Court has handed down decisions that allow the election process to be totally manipulated and distorted by purely partisan forces. Unless an election law names a protected class on its face, in 2019, in Rucho vs Common Cause, the Court ruled that while partisan gerrymandering may be "incompatible with democratic principles," the federal courts cannot review such allegations, as they present nonjusticiable political questions outside the jurisdiction of these courts. This case explains why Trump recently ordered red states to use gerrymandering to protect the GOP’s slim majority in the House. Texas leapt into action.

In 2021, the Brnovich v. Democratic National Committee Supreme Court all but repealed Section 2 of the Voting Rights Act of 1965. The decision interpreted the "totality of circumstances" language of Section 2 to mean that it does not generally prohibit voting rules that have disparate impact on the groups that it sought to protect, including a rule blocked under Section 5 before the Court inactivated that section in Shelby County v. Holder (a 2013 case that released states with traditional patterns of racial voter discrimination from federal oversight).

A little over a year ago, in Trump vs United States, the Court held that presidential immunity from criminal prosecution presumptively extends to all of a president's "official acts" – with absolute immunity for official acts within an exclusive presidential authority that Congress cannot regulate such as the pardon, command of the military, execution of laws, or control of the executive branch. Numerous subsequent decisions expanded presidential authority, at the expense of congressional power, to hold back funds approved by Congress and to have a very free hand in firing individuals in congressionally funded federal agencies under the executive branch. The Court will soon have to test whether the President’s mere statement of “emergency” conditions (without substantiation) would be sufficient to usurp Article I of the Constitution’s grant of setting taxes and tariffs to Congress.

We have also witnessed Trump-appointed administrators and lawyers find ways to twist and squirm to avoid federal court orders, even from the Supreme Court itself, particularly in the realm of citizenship and immigration. To confuse matters further, on June 27, 2025, in Trump vs CASA, Inc, the Supreme Court held that federal district courts likely lack the authority to issue universal injunctions blocking presidential actions nationwide, a ruling that is likely to allow the Trump administration to continue enforcing executive orders or other policies despite legal challenges to their constitutionality.

Politicians follow trends, and judges are supposed to ignore trends and apply the law. Populists often prefer leaders to laws, believing that this path generates necessary efficiencies to effect their beliefs. Yet looking at major variables over time – studies have shown that metrics like economic growth, life expectancy and the encouragement of investment consistently show that democracies always outperform autocracies. Yet the zeal of populists and the frequent submissive inattention of most voters often decimates democracy and its obvious benefits.

I’m Peter Dekom, and it is incumbent on those who understand what the rule of law means, to human rights and happiness, convey: it is not red vs blue, but democracy vs autocracy that is at issue today.