Last week the Deans of the Harvard Law School and the Yale Law School wrote a "blistering" joint op-ed for the Boston Globe denouncing President Trump's recent statements about judicial opinions (including those in Washington v. Trump), which also criticized members of the judiciary. Speaking on behalf of the American legal academy, Deans Post and Minow characterized Trump's comments about "so-called judges" as threats to the democratic political order and American values.  While the target of their attack is clear, what it defends is not obvious.

In the rousing conclusion of the op-ed, Post and Minow invoke the rule of law, around which they encourage the American people to rally. Despite according it the highest value, the Deans do not define the rule of law, although they appear to equate it with adherence to a legal order in which "official, publicly justified sanctions [are substituted] for animosity and enmity". It is also cast as the opposite of tyranny, a state of affairs in which a "so-called president" can presumably pursue vendettas without restriction.

Despite vague allusions to a whole range of American values, the deans' vision of the rule of law is surprisingly thin; it could just as easily be called legality, or legalism. It seems strange, however, to say that whatever a judge would opine should be above criticism merely because of their status as the guardians of the laws, as if the content of the laws does not matter. However, this empty formalism and "the legitimacy and authority of judges" may be all that the American legal profession has to defend.

Trump purported to suspend the entry of hundreds of thousands of immigrants and refugees. His full-throated cry for unfettered control received the response from the judiciary (and now the professioriate) that one would expect. However, President Obama made the same argument repeatedly, although more quietly and successfully. In Kiyemba v. Obama, twenty-two Uighur detainees--who had never been labelled enemy combatants--argued that they should be released from Guantanamo Bay. Despite being granted habeas corpus, the government's lawyers argued that no court had the power to admit them into the United States (as this belongs to the executive exclusively), even if this was done to bring the detainees into the presence of the court adjudicating their petitions.

When the Supreme Court refused to uphold the grant of the writ, it struck a dagger into the heart of the rule of law. It allowed the government to prevent courts from giving relief to those that the government detained illegally, even while it admitted they were factually innocent. The Deans of Harvard and Yale penned no op-eds about Kiyemba, just as they held their silence when a court upheld the targeted killing of an American citizen, wherein it concluded that while "[T]he plaintiff asks this court to . . . assess the merits of the President’s (alleged) decision to launch an attack on a foreign target . . . [that] happens to be a U.S. citizen, the same reasons against judicial resolution of the plaintiffs’ claims . . . apply with equal force."

For fifteen years, American courts used smooth language to justify handing unreviewable powers to the executive with no complaints from the nation's law deans. Now that Trump is asserting that he can use these powers as he pleases, they label his statements as a danger to the rule of law. Unfortunately, the op-ed presents Trump with ample opportunities for a counter-attack. The deans fail to understand that Trump attacks judicial decisions as politically biased, and driven by the political affiliations of the justices. In condemning Trump's order banning refugees from the country but not Obama's order barring Guantanamo detainees seeking justice, the Deans exemplify the legal profession's tolerance for executive power during the Obama administration.  Trump's appeal is closely related to his disdain for elite hypocrisy: the deans should have been more careful not to provide him with an opportunity to deploy one of his favourite rhetorical weapons.

There are other indications that the  theoretical basis for Minow's attack on Trump is not as solid as it should be, leaving them exposed to counter-attacks. They invoke the "political philosophy" of the Nazi jurist Carl Schmitt as a forerunner of the President's belligerent approach, while failing to note that within their own law schools numerous professors have--for decades--held up Schmitt's work as a persuasive rebuttal of classical arguments about the rule of law and the reality of a division between law and politics.  It would bring a cynical smile to the face of anyone who studied jurisprudence in an elite American law school to see Schmitt being deployed as a bogeyman, as his work was routinely cited with approval by numerous leading legal scholars.

If the president's party (or ideology) defines his critics' stance on executive power and the parameters of the rule of law, then these Deans are right to throw their weight against criticism of the "authority and legitimacy of the judiciary", as its ethos serves as the last remaining justification for a role for the legal profession in the American state. However, one might hope that within the American legal academy there are still scholars who can demonstrate that one's defence of the constitutional order can be principled and consistent.

 
 
        The first rebuke to Trump's initial flurry of Executive Orders came from the courts, in the form of a Temporary Restraining Order suspending (inter alia) the U.S. Refugee Admissions Program, and a refusal to stay that Order. Many lawyers are cheered by these rulings --and rightly so.  It's also important to understand their significance, so as to not lose sight of the real goals of a struggle to restrain a domineering presidency:  We should be looking for deeds, not just words.

         The denial a stay was a positive step, but it shouldn't be overstated as it is purely preliminary. There was already a call by one of the judges on the circuit for rehearing en banc, which signifies division on the 9th Circuit's bench about the decision.  Also, in some form or another, the matter is headed to the Supreme Court (and for reasons I will explain in later posts, one shouldn't be sanguine about the chances of a 4-4 split among the Justices). Many challenges to the executive brought by the ACLU and other organizations were initially successful, but ultimately fruitless owing to later reversals. More often than not, they were stymied by the use of procedural evasions that courts use to avoid addressing the heart of the matter.

         That said, many people forget the ultimate ruling, but remember the lofty language. In Washington v. Trump, the opinion includes a resounding defence of the rule of law. What rings false are the court's many citations to Boumediene v. Bush as a source for that principle. In Boumediene, The Supreme Court opined that the prisoners subjected to the horrors at Guantanamo were entitled to a reasonable opportunity to challenge their detention. The rhetorical rebuke to the executive yielded nothing, however. The D.C. Circuit gutted--and openly derided--the Supreme Court's instructions; the Supreme Court refused to end that defiance, or even to address it. Nevertheless, much attention was paid to Court's fine-sounding phrases about the constitution and very little was given to its failure to implement its plan to restore the bare minimum required by the rule of law. This leads many who opposed the assault on the constitution to a skewed view of the role the courts could and would play in defending it.

         Trump's order asserted an unreviewable authority over immigration. It denied the courts any role in enforcing the constitutional rights of those affected by the misuse of that authority, even when they have well-defined rights (especially green card holders). In Boumediene and other war on terror cases, the Supreme Court refused to accept that diminished role. Unfortunately, the Court was often willing to limit the right to challenge the executive to the point that it became meaningless --as would be the case here if the courts are limited to examining whether the policy to bar refugees has no rational basis or is unsupported by any evidence. That of course is Trump's backup argument: if you won't let me have the final word in theory, at least let me have it in practice. The rule of law requires more.

         Everyone remembers Brown v. Board of Education. Very few remember Brown II. When I clerked for the late Judge Robert L. Carter (an architect of Brown) he told me that his greatest disappointment was the inclusion of the phrase "all deliberate speed" in Brown II, which allowed cities to avoid desegregating their schools for years, and destroying the momentum of that phase of the civil rights movement. Lawyers must keep their eyes on the prize --court rulings that have real life effects, like United States v. Nixon. That ruling was possible because the presidency was under fire from all sides; the court was not required to play the leading role in the resistance.

        Lawyers should celebrate the courts' rhetorical defence of the rule of law, but be alert to the possibility that this may not extend to real restraints on the executive's abuses. Guantanamo Bay is still open nine years after Boumediene; Bush was never impeached. Don't expect the courts to take the lead, but cheer them on when they rally.