Democracy and the Rule of Law Part 4: Retired Massachusetts Justice Robert Cordy on Defending the Pillars of Democracy

Welcome to the fourth installment of our series on democracy and the rule of law. 

In our last installment, retired Massachusetts Supreme Court Justice Robert Cordy described his work advising judges in Russia and Turkey how they could align their judicial systems with the judicial systems of Western countries, an alignment that could have improved those nations’ relationships with the West.  He also described how, after years of effort, that work was abruptly shut down by those nations’ autocratic rulers, who saw it as a threat to their power.  

Justice Cordy and I also discussed two key pillars of democracy -- judicial independence and a free press.  When autocrats take control of a country, they begin by taking control of the courts and the media. Judges and reporters who oppose a dictator are jailed or worse. Constitutions are rewritten to place the courts under the autocrat’s control. The dictatorial ruler takes over the press, and any news outlet that publishes content critical of the ruler is shut down.  

In this fourth installment of our series on Democracy and the Rule of Law, Justice Cordy and I continue our discussion about the autocrat’s playbook. Mr. Cordy also provides a hopeful glimpse of change in one Central Asian country, explains what worries him about developments in the United States, and describes the important role of the lawyer in defending our constitutional democracy.  

Once again, the full interview is available at the Higher Callings website and other podcast platforms.

Transcript

Excerpts from an Interview with Retired Massachusetts Justice Robert Cordy

Recorded March 2023

Don: You gave a talk at BC Law School, Boston College Law School. You sent me a copy of it. It's the Rappaport Lecture. Your talk was entitled "Challenges to Constitutional Democracy: Lessons from Abroad," and the date on it was September 5th of 2018. So that wasn't long after you had been forced to leave Turkey. I want to read just a couple portions of this because I think it's extremely interesting, and disturbing too, concerning.

First of all, though, I just want to say in your opening paragraph, I picked up on something. Your last sentence is, and this is neither here nor there, but your last sentence is, "Constitutional democracy, so conceived and constructed, has been the foundation of our security and prosperity." I detected a little hint of Abraham Lincoln in that. It sounds a little bit like one of his lines from the Gettysburg Address. 

Bob: It's entirely possible. 

Don: Okay. But here's what you say on the next page. And I think this probably sums up a lot of your talk. Your talk was very focused on the interrelationship between an independent judiciary and a free press and how they rely on each other, very much so. And if you lose those, you lose democracy. 

So now I'm just going to quote you. 

"The rise of constitutional democracies and the global institutions they created produced an unprecedented period of peace and prosperity in Europe. And while the trend line towards freedom through democracy 25 years ago seemed so positive in Eastern Europe, Africa, South America, and elsewhere, it has now turned dismal.

"According to the Economist's Democracy Index, 89 countries regressed in 2017 and only 27 improved. And Freedom House reports that for the 12th consecutive year, countries suffering decline in political rights and civil liberties have drastically outnumbered those registering gains." 

Can you talk a little bit about that, Bob? And also about where free speech, freedom of the press, really, the free press and the independence of the judiciaries, how they are sort of the pillars that you're focused on for a free democracy?

Bob: Well, I mean, this is all just context in which I was working at the time, and important to sort of understand. I have to say, when I got involved with the international legal community, it was really quite something. All of a sudden it became apparent to me that we actually could help countries that wanted to move towards a fairer system of justice that would be respected and trusted by their citizens and applauded in the international community which had so emphasized the protection of human rights and liberties as a cornerstone of modern constitutional democracy. And for the first time in my life, I realized that I actually had something that I could offer 

I mean, if there was any regret I had about not becoming an engineer, it’s that if you're an engineer, you can take that talent anywhere in the world and build a water treatment plant, a sewage treatment plant, a this or a that. But if you're an American lawyer in the 70s and 80s, you know, that was it. There was no marketplace beyond that. And all of a sudden, the international community -- Russia, Turkey, and others -- were looking towards the United States and our system to understand it better. And all of a sudden, there was something we could offer.

And that was really quite wonderful. The sad news is how fragile that all was. And Russia and Turkey are two incredible examples as well of what an autocrat can do. The playbook is to cripple the free press and the independent judiciary and then run the country as you choose to run it, which is exactly what's going on in both of those countries. 

One of the other experiences that I had, and probably my most intense experience, was with Uzbekistan. In 2012, I was contacted and basically told that they understood I would go anywhere and do anything for rule of law, and they wanted me to come to Uzbekistan to speak at the 20th anniversary of their constitution, which I did.

And they were in a constitutional democracy, which was run by an autocrat. But there was an effort to try to open things up. And I was asked to come in to help with that process, which I did. I've been there 12, 13 times and have sent dozens of delegations of judges and lawyers and others there and hosted many delegations here.

That experience was very different. That is my one major positive experience. After the autocrat passed away, someone else came into power who actually had in mind opening the country up, and to do that he needed to support an independent judiciary, needed to support free press, civil society. And it has worked remarkably well.

We've got lawyers now working with prosecutors and judges in teams to improve their criminal justice system, criminal procedures, civil procedures, and all of that has been extraordinary. But I know how fragile it is, and how a turn of events can change everything. So, I don't know what else I can add to that, except, at least there's one place I know that, you know, me and others have made a difference in a positive way.

Don: Well, that's great. It's just so important. And we here in the United States take all of that so much for granted. 

Bob: Oh, we do. When I used to come back from these trips . . . I totaled it up the other day. I actually took 35 international trips to 10 different countries to work with judiciaries there. And I used to come back all the time and say, "Thank God I'm home. Boy, do we have so much to be thankful for!"

Don: Yeah. I mean, none of it's perfect, right? We see assaults on free press and we see that there are good judges and bad judges. But by and large, we've got a pretty great system. And most Americans today, or at least large numbers of them, don't necessarily understand how good we have it and appreciate how important all of that is.

Bob: That's true. 

………………………………………………

Don: We've talked about the importance of the independent judiciary and the free press as kind of played out in Russia and Turkey, and fighting corruption, weeding out corruption as you're doing now in Ukraine. Uzbekistan sounds like a great success story. But bringing it all back home, how concerned are you about the strength of our own democracy and the press and the judiciary in particular, which of course is your expertise? 

It's been a rough few years. Democracy has been, some would say, and I would agree with it, has been under attack at very high levels. What do you think about what's going on in this country today, and how hopeful are you? 

Bob: Well, I try not to think about it all that much, because it is very distressing. Collaboration is extremely important. We have really wonderful institutions, the judiciary being one of them, although I must say, it varies from state to state. Some of these electoral campaigns going on in some of these states make me physically ill. 

But we have a lot to be grateful for. And to see some of this falling apart at the seams, to see all of this hate, lack of collaboration, it's just, it's very distressing. And the courts have lost a lot of respect, particularly the Supreme Court of the United States, which is unfortunate. They were always really one of the most respected institutions in government. They've lost some of that. I think in part for good reason, which is terrible. So I worry. I worry.

People have to come together. They have to appreciate that we really have a lot that people around the rest of the world don't have and we need to save it and that's really important. And everyone has to take it on either by voting or by having their voices heard or by supporting those who ensure that this will continue.

Don: What would you say to any lawyers or law students who are listening to this podcast about what they can and should do to step up and protect our democracy? 

Bob: Well, I think what I can say is that they need to consider that. 

There's a wonderful quote, which I will try to find in a second, from de Tocqueville, which is my favorite quote. And the reason this quote strikes me and the reason it helps answer your question, lawyers have a very important role to play in protecting and ensuring the continuation of our constitutional democracy. And de Tocqueville, this was one of his observations, which I think is so important. It reads as follows: 

"The authority that Americans and their laws have entrusted to members of the legal profession, and the influence which these individuals exercise in the government. is the most powerful existing security against its excesses." 

Lawyers have a role to play. You don't just become a lawyer to go out and practice little things over here. You're a part of this important community and you have a role to play in ensuring the continued success of a constitutional democracy, which requires an independent judiciary and a free press, two critical components of that constitutional democracy.