I am excited that people are speaking positively about the rule of law. President Trump’s attacks on the legitimacy of “so called” judges, and his initial reluctance to follow judicial decisions on his Executive Order banning travel from seven countries, threaten the fabric of our constitutional democracy and the concept of judicial review. However, simply citing rule of law concerns without understanding them, or without having rules for applying them consistently, is actually antithetical to rule of law values.
Throughout my time in law school and as a lawyer and now law professor, I have lamented that people don’t care enough about rule of law. Although legal interpretation is a complex activity with many variables, and surely outcome must matter to some degree, many in the public, and even many lawyers, want laws enforced when they like them and not when they don’t. They want judges to find state action unconstitutional if they think it is unjust/unwise and not if they don’t. They are chagrined by Trump’s questioning the legitimacy of judges but fine with President Obama excoriating — and misrepresenting — the Supreme Court’s decision in Citizens United (corporations’ speech is protected; just ask the NY Times. That doesn’t mean corporations are people) in a State of the Union address that further politicized the Court, perhaps contributing to the mess we are in today. Sure, President Trump is much more of a threat to rule of law values, but President Roosevelt’s Court-packing scheme, in my view, rises to Trump’s madness. Inconsistencies about how the judiciary should interact with the other branches is actually a pervasive problem that everyone, myself surely included, exhibits to varying degrees.
So, my non-rhetorical questions are as follows: How can this respect for the rule of law be squared with the idea, emblazoned on a quote wall at Harvard Law School (where I loved working), that an unjust law is no law at all? If you liked Trump’s Executive Order as a matter of policy, how would that change your view of the appropriateness of courts declaring it unconstitutional? Or, if you disliked the order but courts declared it constitutional, how much would you ask people to defy it anyway? How much would you want to defer to the judiciary, or even the democracy, when you think these institutions have reached the wrong result? What does rule of law actually mean to you, in a consistent, not hackish/partisan way?
I am a legal positivist, so I think we need to let laws, including the Constitution, govern us always, except in extreme cases (and allowing for a small amount of prosecutorial discretion). I am not always successful, but I also try to separate my methods of constitutional interpretation from my own personal politics. But if you believe in rule of law only when you like a court’s ruling, I submit that’s the opposite of caring about rule of law.
[Edit. Here is President Obama discussing Citizens United at the State of the Union, in front of the Supreme Court. Although it was improper for him to use his status to undermine the independence of the Court in this way, his remarks do not call into question the legitimacy of the institution the way Trump’s do.]