Red Lights Flashing: Warning Signs for Our Courts from the Republic of Georgia

By AAROL Member Neil Weinstein.

Courts in the U.S. are losing their luster. The approval rating of our courts, especially the Supreme Court, is at an all-time low — in part because of the Supreme Court’s seemingly reflexive acceptance of the Trump Administration’s applications, decided almost always through its “emergency” or “shadow” docket via orders that lack explanations for the public or guidance for the lower courts. The resulting impression that the Supreme Court is a one-sided supporter of the Administration is reminiscent of the deterioration of judicial independence that I witnessed while working on USAID-funded rule of law programs in the developing world. Perhaps the closest comparison is what I saw in the Republic of Georgia.

When I first arrived in Georgia in 2011 as an advisor to a USAID-funded rule of law program, local lawyers and civil society leaders told me that the greatest threat to their justice system was that the courts almost always favored the government in any case that came before them, whether criminal, administrative, or civil — the fundamental rights of defendants in criminal matters were routinely ignored and civil suits against the government had almost no chance for success. In their opinion, Georgia’s young democracy could not survive if this situation did not change.

The challenge was that these Georgian lawyers and civil society leaders had no way of proving that their suspicions of deeply rooted problems in the courts were true. Accordingly, my initial task was to help two of the country’s largest human rights organizations systematically monitor the courts to determine whether judges respected the rights of those charged with crimes and those involved in civil disputes against the government.

The initial results were appalling. From observing hundreds of criminal proceedings, we found that courts granted every motion brought by the prosecution but only granted motions brought by the defense if the prosecution did not object. Similarly, in administrative proceedings against a government entity, the government was fully or partially successful 93% of the time. Initially, Georgia’s judicial leadership criticized these findings as biased and inaccurate. But at least in part as a result of our monitoring, the performance of Georgia’s courts dramatically improved — so much so that the judicial leadership that initially criticized the reports began citing them as proof of the judiciary’s improved performance. These court monitoring programs demonstrated the importance of U.S.-supported citizen involvement and the impact of holding courts to their stated high standards.

When I started working on USAID projects in Georgia full-time in 2016, I designed and oversaw exchanges between U.S. and Georgian judges, including selecting American judges who came to Georgia for short, targeted assignments and others who spent months in Georgia mentoring and training their Georgian counterparts. The incredible respect that the Georgia judges had for U.S. judges and our judicial system, encompassing the work ethic of our judges, the transparency of our system, and the respect that citizens held for our judges, was apparent. One example: when Judge Allyson Duncan, then a federal appellate judge and the chair of the federal courts’ International Judicial Relations Committee, came to Georgia, virtually every one of the country’s judges attended her presentation. At that time, the Georgian judges were under intense political and public pressure and asked Judge Duncan how they should respond. Her answer, in short, was to speak through your opinions and take the heat. The Georgian judges accepted and respected that answer, and I think it inspired many of them to heed that advice.

Through these and other efforts, Georgia seemed on its way to candidate status to join the European Union. Sadly, following Russia’s full-scale invasion of Ukraine, the Georgian government abandoned its EU ambitions and reversed its progress towards becoming a democracy with an independent judiciary. When I left Georgia in 2024, it had reverted to being an all-but-one-party state where the courts routinely violated the rights of criminal defendants, especially those charged with protesting against the government. Similarly, when a civil party is in conflict with a government interest, such as when the party is a pro-opposition media outlet, the outcome seems preordained. Because of this, the courts are one of the least respected institutions in Georgia.

Admittedly, there are historic and current differences between the courts in the Republic of Georgia and those in the U.S. Nonetheless, there is reason to fear that our courts are becoming more like those in Georgia, predisposed to do the bidding of the ruling party while ignoring the right of individuals to challenge the power of the State. I continue to hope and believe that the U.S. will not go down the same path as the Republic of Georgia. But that can only happen if our courts maintain their adherence to the rule of law and evaluate each case on the merits, regardless of whether the outcome favors or is contrary to the position argued by the government, and carefully and fully explain their decision-making to the rest of us. Transparency is key to earning back the respect of all Americans. Otherwise, it is possible that the U.S. could become the sort of one-party state that now exists in Georgia. It has happened in other countries, and it can happen here.

Mr. Weinstein is a lawyer who has worked to improve access to justice, the rule of law, and human rights in Asia, Africa, and Eastern Europe. Before working internationally, Mr. Weinstein was a prosecutor in New York City and a litigation partner at a law firm in San Francisco. He is a graduate of Cornell University and Harvard Law School.

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