The Rule of Law Matters

Why I joined a letter about due process and the rule of law

Constitution in the National Archives by MrTinDC

Today, I joined a number of my WashU Law colleagues in a letter conveying that “more than at any other time in our careers, we believe that the rule of law is facing grave peril.” You can read the whole thing here.

I don’t typically sign group letters—in fact, I don’t recall ever signing one. While I occasionally join other scholars on amicus briefs, I do so only when those briefs advance arguments within my expertise and when I agree with every assertion made. The WashU Law faculty letter includes sections that I would have worded differently. It also omits points that I would have made. But I did sign this letter, and for that reason, I thought it would be useful to explain why.

My principal reason is that the scope and speed of executive action over the past few months have placed considerable, unprecedented, and dangerous pressure on longstanding and widely shared norms of lawyering and legal institutions. The Trump administration is downplaying or ignoring the importance of courts, due process, and the rule of law at a scale we have not previously seen in this country.*

As I wrote in my book, Learning to Disagree, our country depends upon a functioning legal system to resolve disputes that would otherwise be resolved much differently:

Think for a minute about the alternative—­a world without law. A world where it’s everyone for themselves and violence reigns unconstrained. A world with unending cycles of vengeance where the people with the most strength dominate and exploit the people who are most vulnerable. You might point out that this already happens anyway in a world governed by law. And you would be right. But think how much worse it would be if the law no longer constrained any of our worst impulses.

In deciding to join the WashU Law faculty letter, I also considered three issues raised in a recent post by Professor Stephen Bainbridge explaining why he chose not to join a similar letter by his faculty colleagues at UCLA School of Law.

1. Bias against conservative students

Professor Bainbridge worries that letters of this kind risk alienating some members of the law student community, particularly students who support the Trump administration and its policies. I think this is a reasonable concern. If I had drafted the WashU Law faculty letter, I would have noted that intelligent people of goodwill (including law students and law faculty) can and do support many of the policy objectives of the current administration. We should be arguing about the merits of those policies. We should also distinguish critiques of policy ends from critiques of the means through which this administration is pursuing those ends.

I will add that a letter like this probably isn’t the tipping point for conservative students feeling alienated or confronting bias in their law schools. Institutions that lack meaningful diversity among their faculty—including political diversity—are less likely and often less able to recognize and understand different perspectives. That is one reason that representation matters and why diversity of all kinds strengthens institutional thinking. But these issues are neither solved nor exacerbated by letter writing.

2. Institutional neutrality

Professor Bainbridge suggests that a critical mass of law faculty signing a letter risks conveying an institutional position and creates tension with a commitment to institutional neutrality (a commitment recently asserted by Washington University).

I do not think Professor Bainbridge’s concern sufficiently accounts for the disclaimer in these letters that faculty are signing in their individual capacities. Law professors routinely make such disclaimers—in briefs to courts, in opinion pieces, and in contributions to governance and leadership of external organizations. We accept the meaning of these other disaffiliations; we should do the same here. The WashU faculty letter did not arise from formal faculty governance or under the auspices of the dean, which are the only two ways that I know of for a law school to express itself institutionally.

More substantively, even if this were a letter conveying the law school’s formal position, there is little in its substance that goes beyond what a law school should stand for. More on that a little later in this post.

3. Core expertise

Professor Bainbridge expresses concern that the letter he was asked to sign covers topics beyond his expertise. He argues that it is important for academics whose reputation rests on their expertise not to veer outside of their lanes.

I generally share the concern to stick to one’s expertise, and it is one of the reasons I was reluctant to sign a letter of this kind and often decline to join amicus briefs. But while letters from other schools may have made more particularized representations, nothing in the letter I signed is outside of my expertise as a law professor, constitutional scholar, former government lawyer, and informed citizen.

Another Reason to Sign

In addition to reaching different conclusions than Professor Bainbridge regarding his three principal objections, I have an additional reason for signing this letter: it says something about who we are as a law faculty—and perhaps about our aspirations as a law school. The letter asserts that “as law professors responsible for educating the next generation of lawyers, we have a special duty to promote the rule of law through our teaching and scholarship.” It concludes with an affirmation of “the basic purpose of our work—to advance constitutional principles and strengthen our legal institutions.”

I applaud these characterizations of our collective work, which go well beyond typical platitudes like “being excellent” or “pursuing justice” (as if the category of “justice” could be coherently named in a pluralistic society or law school). And while this letter is only from faculty writing in our individual capacities, it provides a starting point for what our law school could be. It publicly represents that a large number of us are committed to particular ends:

• Promoting the rule of law

• Advancing constitutional principles

• Strengthening our legal institutions

Legal practice and legal education are social practices—they are ongoing argumentative conversations embedded in institutions that mediate traditions across generations. The ongoing argument means that we will inevitably disagree about the precise contours of the ends we name together. But as this letter indicates, we maintain some agreement about those ends, and we know when they are jeopardized through the erosion of longstanding norms, threatening rhetoric, and a disregard for due process.

I hope that this letter and what it represents might also be an opportunity for those of us who signed it (and for those elsewhere in the legal academy who sign similar letters) to recommit our support to the rule of law, constitutional principles, and legal institutions as such and not simply as a response to the current administration. It is important that we work every day, regardless of who holds political power, to strengthen law and its institutions. We can critique judicial decisions as poorly written and insufficiently reasoned without accusing judges of dishonesty. We can oppose particular judicial nominees for political or other reasons without attacking their character. We can disagree with and even deplore Supreme Court decisions without calling into question the Court’s legitimacy. These are some of the ways we can promote the rule of law instead of just defending it.

When, as now, gross violations of due process and the rule of law threaten the institutional norms on which we depend, we should speak and act to protect those norms. But if law is in fact a shared commitment that underlies our ongoing democratic conversation, then we should reflect that commitment in ordinary as well as extraordinary moments.

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* Some of the more egregious examples from the last few weeks include deportations to El Salvador without any due process, disregarding a federal court injunction to stop those deportations, targeting law firms that have represented clients the President doesn’t like, firing the top uniformed lawyers at the Pentagon, sidelining the Office of Legal Counsel, the President calling to impeach a judge who ruled against him, and the President claiming that “He who saves his Country does not violate any Law.”