The Fragility of Law

Terry Schwadron
4 min readDec 1, 2022

Terry H. Schwadron

Dec. 1, 2022

Just this week, a spurt of news has served as a reminder of the fragility of laws and practices meant to guarantee our American values.

For months, years maybe, whether in courts or in the Congress and White House, we’ve witnessed how narrow the line is between continuing what we see as rights and upholding the principles that it is law rather than who you are that demands attention.

In a quirk of calendar, we saw a confluence of decision-making this week that should remind us that we really don’t know the outcome of some of our more critical issues until the final votes are counted.

That was true in this month’s elections, of course, but just this week we saw the Senate adopt protections for same-sex marriage and interracial couples, we saw a court jury in a Washington federal court convict the head of the Oath Keepers militia group for sedition, there were more adverse legal rulings that move closer to holding Donald Trump to account for various allegations of wrong-doing.

We’re seeing an election runoff for U.S. Senate in Georgia in which Democrat Rafael Warnock is campaigning by showing voters reacting to video statements by Republican Herschel Walker, finding him often incapable of speaking a complete sentence, and Walker contributing to the voting chaos by acknowledging in documents that he actually lives in Texas, not Georgia at all.

At the same time, we saw consumers spending like crazy despite inflationary prices and any number of more multiple shootings. The informal rules we hold as a society seem as hole ridden as the workings of our more formal decision-making institutions.

Taken together and looked at as a gauge of fealty to values that we say we believe in; it all looks a lot more fragile than the individual decisions would suggest.

Respect for Marriage Law

From an historic point of view, the Senate vote extending federal marriage protections was perhaps the most noteworthy, though the vote had been foreshadowed by a procedural roll call two weeks ago that drew multiple Republican senators to join the Democratic majority.

Passage of the Respect for Marriage Act, as it is called, is important in itself for repealing the previous Defense of Marriage Act that had asserted marriage limited to one man and one woman. But it was also a necessary rebuke of sorts for the Supreme Court, which in at least one concurrent opinion from Justice Clarence Thomas in last summer’s abortion rights case, had all but invited a court challenge against same-sex marriage based on the same legal underpinning.

The issue, of course, highlights exactly this sense of fragility of rights we are witnessing in this country and around the world.

What was called for was an assertive statement of protection for what every poll, every election, and common sense says is widespread acceptance among Americans to protect same-sex marriage laws. Specifically, LBGTQ advocates would have wished for a yet stronger law, since this does not require any like action from the states, but it certainly is a powerful tool that would blunt any challenge of such laws before the Supreme Court.

Apart from all else, the 61–36 vote in the Senate coincidentally was affirmation of our unwritten desire for more bipartisan action aimed at solving problems rather than serving as symbolic positioning by partisan political parties in a split Senate.

An Important Conviction

Of equal interest was the decision by a federal jury to convict Oath Keepers founder Stewart Rhodes and a top deputy Kelly Meggs of seditious conspiracy for leading a plot to unleash political violence to prevent the inauguration of President Biden, culminating in the Jan. 6, 2021, attack on the Capitol. Three other associates were found guilty of lesser crimes. The offenses are punishable by up to 20 years in prison.

The question in the trial was not the evidence, which was bountiful, and which included recordings of direct threats against Speaker Nancy Pelosi by Rhodes, but whether the Department of Justice would and could successfully prosecute those not involved in the literal assault on the Capitol.

The outcome of this trial undoubtably will spur Justice prosecutors in other cases of those involved in the planning and coordination of Jan. 6 actions. When considered in tandem with the appointment of Special Counsel Jack Smith to pursue cases involving Donald Trump, we suddenly can foresee months ahead of what look to be real prosecutions involving the former president.

Had the jury decision gone the other way, we might be talking about an opposite arc of justice ahead.

What stands out to me is the fragility of our expectations of criminal law, of Justice actions in possible prosecution of the rich and famous and of our hallowed repetition of American claims of equality before the law.