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.



02/23/2017 10:52am

Curious to hear more about how Schmitt has been cited favorably. I remember during the John Yoo years there were some articles (albeit scant) comparing the theory of the 'unitary executive' to Schmittian claims.

I agree with your conclusions that the legal profession wants to have it both ways. When an erudite, sharp professional like Obama makes claims to expansive executive power, other erudite, sharp professionals are willing to look the other way. Quasi-imperial policies are sanctioned if they are done by members of the same political party. The inability to see beyond the two-party system is not only regrettable, it is intellectually lazy and a symptom that even the most "educated" in a society are not immune from us-versus-them mentalities. Locke and Montesquieu were neither Democrats nor Republicans.

02/25/2017 10:05am

Thanks for commenting Inder! I don't always have space in a blog post to clarify, so it's great to get a dialogue going.

The positive valuation of Schmitt came into the academy with CLS' engagement with Giorgio Agamben's "State of Exception" (which I could never take seriously owing to his rudimentary errors interpreting Roman Law).

I think Agamben walked back his reading of Schmitt after it was compared with Yoo's views, but I read his argument as the state of exception is actually constitutive of law (a deconstruction following Derrida's "Writing and Difference"): the state of exception is actually the foundation of any constitutional order, etc... I vividly remember Joshua Getzler (the head of the legal history group) incensed over this movement on the left.

Agamben's work fit a rightward drift among the CLS folks, i.e., Mark Tushnet. I think they looked to Schmitt as someone who had revealed the truth about a bourgeois legal order that they despised. Seems a little more dangerous now that the U.S. is looking more like the Weimar Republic every day...

It seems as if the most important distinction in legal scholarship is increasingly between those who see law as just an extension of politics and those who believe it has some autonomy and that procedural justice can be part of a movement towards broader fairness and social equality (or, as the Marxist E.P. Thompson put it, that "rule of law is an unqualified human good."

Unfortunately, I think some crits are doubling down on their critique of rule of law as an oppressive fiction just when we need it most.

Totally agree with your analysis of the two party problem -- very disheartening to see Jill Stein of the Green Party being smeared as a Russia-lover and so-called progressives cheering on the CIA. It's all part of the very disturbing dynamic you identify.

03/15/2017 12:50pm

I am glad I've found your website. It's a good place to discuss such topics with you.

03/19/2017 5:43am

Divorce can be one of the most stressful and traumatic events one has to go through in their life. It's stressful not only emotionally but financially. Depending upon your situation a divorce could cost an arm and a leg. I'm going to show you here how to find an affordable divorce lawyer. Not only an affordable divorce but one that is extremely competent, a member of the Better Business Bureau, and in your area.

03/19/2017 7:56am

When President Trump announced that he will suspend the entry of the immigrants in the country, many people have vocally showed how much they go against with that decision. This is where all these talks started. Some people don't understand his decisions, including myself. But my hope never ends regarding his real intention for the country.

03/22/2017 5:18am

What can we do about it? What is your opinion about this situation?


Looking into a personal injury lawyer is sometimes a long process. Before you find one that you can trust there are some things that you have to take into consideration. The person you choose to be your lawyer is going to represent you in the court of law.


Your blog is very useful and provide tremendous facts. It is going to change the way one think by a sharp angle. I wonder if you write on gadgets also. Keep up the good work ahead.....


Leave a Reply