Joseph Sabino Mistick: Standing up for our system of justice

The voters of Wisconsin stood up last week and showed the Elon Musks and Donald Trumps of the world the judicial branch of government is not as easily conquered as the executive and legislative branches. In the high-stakes race for a seat on the Wisconsin state supreme court, the Musk-backed MAGA candidate lost, despite nearly $20 million of Musk-related campaign contributions.

Before the election, Musk called the race “a vote for which party controls the House of Representatives,” and he is right. State supreme courts must ensure that future congressional district maps provide equal protection for all citizens, which often means that political control shifts as the population has shifted.

It is possible that Musk will turn his attention to the Pennsylvania Supreme Court next, since three Democratic justices are up for retention in November. It would then be up to Pennsylvania voters to stand up to the outsiders who will try to take control of this state’s highest court.

But there are other ways to exert control over America’s system of justice, and Trump has had more success bullying lawyers than he has had bullying courts and judges. Candidate Trump vowed to get vengeance against his political enemies if elected, and he has been good to his word when it comes to those lawyers and law firms that have crossed him in the past.

Using presidential executive orders, Trump has taken aim at some major law firms, suspending their security clearances, barring their lawyers from entering government buildings and talking to federal officials, and prohibiting government contractors from using their services. A few lawyers and firms have fought back, but others have caved — shamefully bending a knee to Trump.

Writing in his Substack publication “Talking Feds,” Pittsburgh native Harry Litman, a former U.S. attorney and deputy assistant attorney general, calls this “genuflecting” by the repentant law firms “a disastrous feature of these first few months of Trump rule” that has “accelerated our decline as a democracy.

“At the end of the day, it is the obeisance of the society as a whole that most marks and feeds the authoritarian state. It’s another lesson from Orwell, and history: when businesses, friends and neighbors are afraid to criticize the maximum leader, we are no longer free.”

Some lawyers have resigned their positions in protest over their firms’ embrace of profits over principle. Hundreds of law professors objected to Trump’s actions. The American Bar Association has stated that it “will not stay silent in the face of efforts to remake the legal profession into something that rewards those who agree with the government and punishes those who do not.”

But it has hardly been a series of profiles in courage. As former Fordham Law School Dean Matthew Diller wrote in Bloomberg Law, “The most powerful voices in the private bar have mostly remained silent.

“Lawyers, especially those in leadership positions, need to rise to the challenge and play their role in defending our democracy, and not fold under threat of retaliation.”

I still ask my first-year law students to stand to present their cases in class. It is old school, but it is important, because that is what lawyers do.

They stand up for those who cannot stand up for themselves — the wrongly accused, the downtrodden, the poor and even the rich, those who have been misjudged and denied justice, those who know that their lawyer is the only thing that stands between them and tyranny.