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July 26, 2023 HUMAN RIGHTS


by Robert A. Stein

Hopes were high for the rule of law in 1991. The Berlin Wall had collapsed. The Soviet Union dissolved. Nelson Mandela was released from prison after 27 years, and South Africa began its transition to democracy. More people were living under a democratic form of government than at any other time in human history. Some even declared that the period marked the “end of history” in which liberal democracy had finally triumphed (Francis Fukuyama, The End of History, 1992).

For the next couple of decades, that optimism continued. The opening of the Iron Curtain brought a “renaissance” in legal and political reform in Central and Eastern Europe and the former Soviet countries. But much work needed to be done—there were constitutions and statutes to write and legal institutions to establish. In response, the American Bar Association founded the Central and Eastern European Law Initiative (CEELI) in 1990. Its mission was to help former Soviet states emerging from communism develop the rule of law. Soon after it was established, CEELI sent volunteers to work on projects to build and expand the rule of law in that part of the world. 

CEELI’s efforts quickly paid off. Within five years, CEELI sent hundreds of volunteers abroad, conducted over 250 workshops and training seminars, and assessed over 255 draft laws and constitutions in 25 countries in the region. By the turn of the century, CEELI helped establish a constitutional court in Bosnia-Herzegovina, assisted a war crimes tribunal for the former Yugoslavian countries, and trained law enforcement personnel to curb crime and corruption in the region. In 2004, the European Union (EU) admitted 10 new member states upon demonstrating their commitment to the rule of law—the most comprehensive enlargement in EU history (Czech Republic, Hungary, Poland, Slovakia, Slovenia, Lithuania, Latvia, Estonia, Malta, and Cyprus). By 2007, two more countries from Eastern Europe, Bulgaria and Romania, joined the EU, followed by Croatia in 2013.

In Hungry, the rule of law began to decline in 2010 after Prime Minister Viktor Orbán and his right-wing Fidesz party came to power.

In Hungry, the rule of law began to decline in 2010 after Prime Minister Viktor Orbán and his right-wing Fidesz party came to power.


And then the rule of law began to decline—in Europe, throughout the rest of the world, and, sadly, in the United States. Despite the tremendous achievements of CEELI, the rule of law in Central and Eastern Europe started to deteriorate by the 2010s, most prominently in Hungary and Poland. In Hungry, the rule of law began to decline after Prime Minister Viktor Orbán was elected prime minister in 2010 and his right-wing Fidesz party gained a majority in Parliament. In 2012, the Hungarian Parliament adopted a new constitution, which further cemented the governing party’s position and undermined the rule of law by removing a number of checks and balances. The new constitution expanded the size of the country’s constitutional court, which allowed Orbán to fill the new seats with Fidesz loyalists. In addition, all judges over the age of 62 were forced to retire, giving Orbán another opportunity to pack the country’s courts with party loyalists. Allies of Orbán’s Fidesz party also took control over large parts of the country’s media, as broadcasters who had previously criticized Orbán began to mirror Fidesz’s positions. In 2020, Freedom House reclassified Hungary from a democracy to a transitional or hybrid regime.

Once a beacon of democracy in the former Eastern Bloc, Poland is now under threat as democracy has deteriorated in the country in recent years. The country’s slip began in 2015, the year the nationalist Law and Justice (PiS) won control over both the presidency and the parliament. Since taking power, PiS has introduced a series of judicial reforms aimed at asserting more control over the judiciary. PiS packed the Constitutional Tribunal—a top court responsible for reviewing the constitutionality of the law—with party loyalists. Shortly after, the country’s minister of justice merged his position with the prosecutor general, giving the government authority over the country’s prosecutors. The ruling party then assumed control over the National Judiciary Council (KRS), the body that makes judicial appointments, by giving the parliamentary majority the right to nominate judges. Previously, members of the KRS were selected by judges. In response to Poland’s judicial overhaul, the EU made an unprecedented move by invoking Article Seven of the European Union treaty against the country.

Nor has the United States been immune from the decline in the rule of law. Once an inspiration to the world, the United States has experienced a dramatic retreat from the rule of law over the past 20 years. The U.S. Supreme Court’s decision in Bush v. Gore, effectively deciding the 2000 presidential election in favor of candidate George W. Bush, may have been a turning point. The Court’s 5–4 decision fell along ideological lines—the five justices in the majority regularly made up the Court’s conservative majority, while the four justices in the dissent were considered its liberal wing—making the decision ripe for protest. A full-page advertisement in the New York Times, signed by 554 law professors, protested that “[b]y stopping the vote count in Florida, the U.S. Supreme Court used its power to act as political partisans, not judges of a court of law.” The Court’s intervention in Bush v. Gore was widely criticized for creating the perception of partisanship by the judiciary, undermining the public’s trust and confidence in the Court and the rule of law.

In the ensuing years, presidents from both political parties have taken actions that undermined the rule of law. Unable to secure congressional support for several of his programs, former President Barack Obama acted unilaterally by issuing numerous executive orders to create laws implementing those programs—a law-making function exclusively reserved to Congress under the Constitution. And former President Donald Trump, refusing to abide by the electoral process in the 2020 presidential election and filing more than 60 lawsuits to contest the result, demonstrated disregard for the constitutional process. Yet, perhaps as a sign that the rule of law is still strong, over 80 judges appointed by republican and democratic presidents ruled against the former president or one of his allies seeking to challenge or overturn the presidential vote. The January 6, 2021, invasion of the Capitol is widely viewed as an insurrection to overturn the constitutional process of election. 

A recent shock to the rule of law in the United States was the decision of the U.S. Supreme Court in 2022 in the case of Dobbs v. Jackson Women’s Health Organization, overturning the longstanding 49-year precedent of Roe v. Wade that held a ban on abortion violated the Fourteenth Amendment of the U.S. Constitution. Critics assailed the Court for making a political decision rather than a constitutional decision in the case.

The World Justice Program Rule of Law Index, which ranks countries on their adherence to the rule of law, has shown a significant drop in the rule of law ranking of the United States in recent years. In the past 10 years, the United States has dropped 10 positions in global rankings, from a global rank of 16 to a current global rank of 26, on the extent to which it adheres to the rule of law. In the most recent Rule of Law Index rankings, the United States ranks 19th out of the 31 countries in North America and Europe. 

One of the most blatant violations of the rule of law in recent years was Russia’s aggression against the independent and autonomous country of Ukraine. This lawless invasion was followed up by numerous additional human rights violations, including the killing of thousands of civilians for no other purpose than terrorizing the Ukraine population, and by removing thousands of Ukraine children from their families and relocating them to Russia. These actions have caused the International Criminal Court (ICC) to indict Russian President Vladimir Putin for war crimes.

More recently, in Israel, the ruling party sought to expand the power of the government by reducing the jurisdiction of judges to challenge government actions. The widespread protests against this proposed action caused the government to postpone the proposed change for now. But the proposed change is only postponed, not withdrawn.

These and many other setbacks to the rule of law in recent years demonstrate that the work to build and strengthen the rule of law in the United States and around the world is a long and difficult process. Often, the rule of law development efforts represents one step forward followed by two steps back. Our campaign to promote the rule of law is not a challenge for the short-winded. The setbacks are so discouraging, but the goal of building and maintaining the rule of law is too important to let up on our efforts.

In this issue of Human Rights on the (End of) the Rule of Law, the authors address the decline of the rule of law from a variety of perspectives. Sherrilyn Ifill’s remarks upon receiving the 2022 Thurgood Marshall Award challenge us to take action to protect the future of our democracy. Dean Erwin Chemerinsky writes about the challenge of teaching constitutional law in this difficult time. Risa E. Kaufman and Katy Mayall examine the fallout from the Dobbs decision during the past year, resulting in the proliferation of antiabortion statutes. Also on the Dobbs fallout, Seema Mohapatra warns of additional rights that could be retracted as a result of the decision. Judge Timothy P. Connors examines the rule of law and justice in Native Tribal Courts. Kirke Kickingbird’s article analyzes the jurisdictional landscape of Indian Country after the U.S. Supreme Court decisions in McGirt v. Oklahoma (2020) and Oklahoma v. Castro-Huerto (2022). Angela Downes discusses the challenge of gun violence in America and an interdisciplinary approach to finding a solution to the problem. Kevin Scruggs describes how the U.S. Supreme Court’s recent Vega decision undermines the power of Miranda. Political gerrymandering and the rule of law is the subject of Paul M. Smith’s article discussing Rucho v. Common Cause (2019), in which the Supreme Court majority held that the controversy was nonjusticiable due to the fact that no manageable standards could be developed. The threat to democracy caused by false information is the issue examined in Lynn Walsh’s article, concluding that transparent and easily accessible information can be a solution. And Stephen J. Wermiel provides a positive historical note by recalling the 1992 Planned Parenthood v. Casey decision in which three Republican-appointed justices reaffirmed a right to abortion after intimating they likely would not have supported a right to abortion as a matter of first impression in 1973 when Roe v. Wade was decided, concluding that their obligation was “not to mandate our own moral code.”

The articles are excellent and enjoyable reading. Enjoy.

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Robert A. Stein

Everett Fraser Professor of Law, University of Minnesota Law School

Robert A. Stein teaches a seminar on the rule of law and a course on the U.S. Supreme Court at the University of Minnesota Law School. He previously served as Executive Director of the American Bar Association for 12 years and as Dean of the Minnesota Law School for 15 years.