“The most sacred of the duties of a government is to do equal and impartial justice to all its citizens,” the third president of the United States wrote nearly two hundred and fifty years ago.
Equal and impartial justice is rooted in the DNA of the written words that formed this nation in 1789. The opening of our Constitution begins with the written words that, “We, the people of the United States, in order to form a more perfect union, establish justice …”
The concept of justice, therefore, was the first ideal of this nation.
But we, “the people,” inspired by corrupt leaders, have not always been courageous, much less committed, enough to practice justice.
President Andrew Jackson gave us the Trail of Tears, the U.S. Supreme Court gave us Dred Scott, and state legislatures gave us Jim Crow. The failure to preserve our original ideal of “justice” in these historical events rests with all branches of government—the executive, the judiciary, and the legislative.
Justice in Time of COVID
But it is the judiciary today that of the three branches of government wears the most discernible cloak of hypocrisy when it comes to doing justice.
On the west side of the U.S. Supreme Court building the words “Equal Justice Under Law” are inscribed, and on the east side of the building, the words “Justice, the Guardian of Liberty” are written.
More often than not, the “justice” played out in the nation’s courts each day gives lies to those nine words expressing a noble ideal that has been compromised by partisan politics.
Courts Politicized, Justice Preverted
Partisan politics were on display on April 6, 2020 in a per curiam decision, Republican National Committee. v. Democratic National Committee, a decision which required voters to put their health and safety at risk to exercise their constitutional right to vote
The decision stemmed from an election dispute in the State of Wisconsin.
Wisconsin had several state and national elections scheduled for April 7, 2020, including the Republican and Democratic presidential primaries. When the Wisconsin Secretary of State set those dates, there was no COVID 19 pandemic crisis.
The governors in 16 states in recent weeks elected to postpone the presidential primaries until the crisis has either passed or settled. Wisconsin was not one of them.
On March 27, 2020, Wisconsin Gov. Tony Evens, a Democrat, called upon the state’s Republican-controlled legislature to cancel in-person voting on April 7 and send registered voters absentee ballots instead. Republicans were vigorously opposed to the absentee voting suggestion. The issue quickly became bitterly partisan. Republicans favored in-person voting despite the public health risks, while Democrats favored the safer absentee voting process. Republicans argued there was not enough time to change either the rules or procedures to accommodate an enhanced absentee voting process. In contrast, Democrats argued that the changes would protect the health and safety of the voters while protecting everyone’s right to vote.
The issue ended up in federal court.
Federal Judge Extends Absentee Ballot Deadline, Republicans Appeal
On April 3, 2020, U.S. District Court Judge William M. Conley, a Democrat, issued an order that refused to postpone the election but did extend the absentee ballot voting deadline from April 3, 2020 to April 13, 2020. Republicans filed an emergency appeal to the Seventh Circuit Court of Appeals.
The appeals court upheld the district court order that same day.
In response to these federal court decisions, Gov. Evans issued a call to the Republican-controlled legislature on April 3 to convene a special session to address the issue of changing the April 7 in-person elections to an all-mail election. The Republican majority legislature heard the matter on April 4 and, after a minute, adjourned without taking any action.
State Supreme Court Denies Extention of Election Date
On April 6, 2020, in response to the legislative inaction, Gov. Evans issued an executive order postponing the April 7 elections until June 9, 2020. The Republicans filed an emergency appeal with the Wisconsin Supreme Court. In a 4-2 decision drawn along political lines, the state’s high court overturned the governor’s order and reinstated the April 7 elections.
On the same day that this partisan political issue was playing out before the Wisconsin Supreme Court, the U.S. Supreme Court joined the political fray On April 6, the SCOTUS issued a 5-4 decision, also along Republican/Democratic ideological lines. The decision overturned Federal District Judge Conley and the Seventh Circuit decisions, thus allowing the April 7 in-person elections to proceed during the height of the pandemic.
In a nutshell, nine politically conservative judges on the Wisconsin and U.S. supreme courts voted to support a Republican political stance. The Republican theory was that mail-in voting would favor Democratic candidates.
The Decision to Conduct Election is Irresponsible
By any measure or definition, the decisions to proceed with elections during an extremely contagious viral pandemic reek of partisan justice. This concept defies the very words of “justice” inscribed on the Supreme Court building.
The official website of the United States Bankruptcy Court for the District of New Mexico states:
“Judicial independence, meaning a court system that works without improper outside influences, is a hallmark of our nation’s democratic system of government. The courts’ function in our democracy is to protect the right of all (individuals, corporations, government, etc.), whether or not they have a voice in the political arena, not simply to reflect the will of the majority. In order for justice to be done for everyone – the majority and minorities alike – judges must be able to act free of the pressures of politics, politicians, the electorate, and special interest groups. Judges must also be able to rule without fear of reprisal. The credibility of the judiciary, and ultimately the public confidence in and support of the courts as an institution, depend both on judges’ independence from outside influence and on accurate public perception of this judicial independence. Judicial independence is so important that it is a fundamental reason for the Constitution’s creation of the three separate branches of government. Furthermore, the Constitution provides safeguards to ensure that judges are able to rule fairly and impartially on the individual cases that come before them (e.g., lifetime appointments for federal district judges, with salaries that cannot be reduced.”
Judicial Independence Weakened
Judicial independence suffered a terrible blow by the two court decisions on April 6, 2020, one state and one federal. Just as in the December 2000 decision by the Supreme Court in Bush v. Gore, justice was defined in these two April 6 decisions solely and exclusively based on the political gain of the party of the judges involved in the judicial decision-making process.
While a given political ideology carried the day in these two courtrooms on April 6, it came at a terrible price—loss of public confidence in the nation’s entire judicial system. There is no doubt that the people of color standing in long lines to vote knew that “white judges” on those two courts voted to support a political ideology at their expense.