22 May 2021 — 2121 mdt

Guest essay

The Demise of the Rule of Law

By James C. Nelson
Montana Supreme Court Justice (Ret.)

It Worked for Hitler!

Dr. David James’ recent guest view comparing our modern political times with those of pre-war Germany and the rise of Hitler and Nazism was point-on. When lies trump truth; when fiction trumps fact; and when fantasy trumps reality, we are, indeed, circling the drain into fascism.

The January 6th attempted putsch of our national government proves that point: lies, fiction and fantasy propagandized by elected officials—who swore to defend the Constitution, not to destroy it—are, as Dr. James noted, the absurdities that cause atrocities.

And, part and parcel of this political perversion is the rejection of the rule of law. The seminal value upon which our Country and State were founded, Justice Sonia Sotomayor concludes that “the rule of law is the foundation for all our basic rights.”

Like any foundation, though, the rule will chip away and fall into rubble unless it is maintained and guarded. That is one of the most important duties of lawyers.

To that point, Montana’s Rules of Professional Conduct bind all licensed attorneys in Montana. The Preamble to those Rules, among other things, sets out the importance of the role of lawyers in society in relation to the courts and the rule of law.

Specifically, Lawyers:

• are officers of the legal system and public citizens having special responsibility for the quality of justice;
• in their conduct, should conform to the requirements of the law, in professional service to clients;
• should use the law’s procedures only for legitimate purposes and not to harass or intimidate others;
• should demonstrate respect for the legal system and for those who serve it, including judges, other lawyers and public officials;
• have a duty, when necessary, to challenge the rectitude of official action, but also a duty to uphold legal process;
• should further the public’s understanding of and confidence in the rule of law and the justice system because legal institutions in a constitutional democracy depend on popular participation and support to maintain their authority;
• as officers of the court, have a duty to engender trust in the profession and the rule of law. Trust in the integrity of the system and those who operate it is a basic necessity of the rule of law.

One can only wonder how these principles are honored when the Attorney General’s office, ostensibly retained by the Legislative leadership, states in its April 12, 2021, letter to the Acting Chief Justice of the Montana Supreme Court that its client does not recognize a particular order of the Supreme Court as binding and will not abide by it.

Certainly, every lawyer with even minimal litigation experience has been the recipient of a court order he or she didn’t agree with. Lawyers know that one appeals the order, asks for further proceedings, or otherwise challenges the order within the process and procedures of the law. That’s the rule of law. Telling the court to stuff it, IS NOT!

Worse, consider the precedent when the AG can tell the Court his client will not abide by a court order—and apparently not be held in contempt. Don’t like a court’s order? Just tell the court you don’t recognize it and it’s not binding.

Getting back to Dr. James’ article, when politicians attack the constitutional separation of powers and seek to intimidate and marginalize a co-equal branch—judges and the courts; when populist autocrats seek absolute power; when the rule of law is trashed; then democracy will spiral into the abyss of fascism.

It worked for Hitler!