Supreme Court opinion

We went down to the square last night, my wife and I, to celebrate the Supreme Court opinion. That opinion was a significant one for the people of Ukraine. And that makes it a very important one for that reason alone and a cause to celebrate. But it is also a milestone for the Supreme Court here and for other lower courts. I think it established the authority of the court in the eyes of the people and that is no small thing. Courts and all the institutions of a democracy in the end are able to work only because they can count on the loyalties of the people. The Court by this decision captured that loyalty. And they also effectively cut themselves off from the political/economic power that has ruled for more than a decade at least. By doing this they established themselves as a legitimate counterbalancing government institution.

And they even satisfied me doing it. I had argued for a far-reaching decision instead of merely canceling the prior vote. To cancel the prior vote would not have resolved much of anything but would have left the centers of power still competing for control. That would have meant delay and more machinations by Kuchma, the oligarchs, and, let’s face it, Putin. Nothing would have been resolved. And it would have increased the likelihood of the streets erupting in the kind of violence that good people wanted to see avoided.

But the Court mandated a new vote. What this did was to order that an end be put to all of this. And they apparently did it appealing to constitutional principles rather than resting it on the elections laws themselves. Those constitutional principles served to fill in the gaps the election laws did not really address. So the Court weighed in against the fraud, ordered a new election and did it appealing to constitutional principles. I couldn’t be more satisfied. (I would though have liked it better if they had presented a reasoned argument about why they did what they did. This would have served as a primer on constitutionalism and the rule of law for the people, lawyers and officials alike. But I am nitpicking here. That would have taken a while to do. Time was of the essence; delay was an enemy. They can do this sort of thing later.)

This might be a hard pill to swallow by those in the US who see judicial acitivism as a real evil. I am one of these and sympathize with the positon. But in a country with a rudimentary rule of law system, one that has traditionally taken its marching orders from the president who represented a ruling clique of the super rich, to have a court flex itself this way is not a bad thing. They need to establish their power and if they had to do this by appealing to “emanations and penumbras” to cite a case from the Supreme Court conservatives would disagree with, it was a necessary thing to do. The court, if it is wise, should proceed cautiously from here.

Yuschenko’s chief counsel explains the decision this way:

Roman M. Zvarich, a member of Parliament and a lawyer who represented Mr. Yushchenko in the court's crowded chambers, said the judges had displayed a democratic maturity by, for the first time, establishing a larger precedence based on the primacy of constitutional rights above the election or other laws.

"The court took the initiative to fill in gaps in the election laws," he said. "This is a milestone decision. The court took a very courageous stand."

The Russian elite are saying that this is a political opinion. They have taken the position that what has happened has come about because of blackmail by the crowds in the street. Both of these complaints have some substance to them. But I say, so what. All legal opinions are, at their core, political opinions and democracy depends on blackmail in the form of coercion all the time to function in the first place. Politics and blackmail in democracy cannot be dismissed out of hand.

What they really mean is Yuschenko and his people got the opinion they paid for. The only thing I can say about this is that they are looking at this through the prism of their own worldview. What they really mean is that that is what they would do in that situation, work to get an opinion they paid for. (I may have more to say on this in a later posting.)

And all of this was done by a court nominally independent but subject to pressure and to, umm, inducements—the carrot and the stick. From the same article:

Only six days ago, a senior Western diplomat discounted the possibility that it would rule objectively on Mr. Yushchenko's appeal. "Historically, the Supreme Court is subject to bribery and intimidation," the diplomat said, speaking on condition of anonymity because of diplomatic protocol and the sensitivities surrounding the crisis. "It is as simple as that. No one has ever considered it an institution subject to independence and integrity."

Well, they stepped in there yesterday and did the right thing. The quavering of the justice’s voice while reading the decision shows that they thought there might be some significant costs to themselves over this. But this revolution has needed people to step up and do the right thing at the right time. Fortunately, these people have been found and found in the right places.

This is the Ukrainian judiciary’s Marbury vs. Madison and it can serve to provide a foundation for the authority of the courts, an authority that is indispensable in democracies. They would be wise not to squander it.