Good Faith and the Rule of Law

Sixty-three years ago today, the U.S. Supreme Court struck down racial segregation in the case of Brown v. Board of Education. In doing so, it completely reversed an interpretation of the Equal Protection Clause of the Fourteenth Amendment that had held constitutional sway for more than a half century. In the 1896 case of Plessy v. Ferguson, the Court had ruled that "separate but equal" segregation of the races was consistent with equal protection.

In its Brown decision, the Court not only overruled Plessy as a general interpretive guide to the meaning of the Fourteenth Amendment, but it also ordered every public school district in the country to desegregate "with all deliberate speed:"

[T]he [school desegregation] cases are remanded to the District Courts to take such proceedings and enter such orders and decrees consistent with this opinion as are necessary and proper to admit to public schools on a racially nondiscriminatory basis with all deliberate speed the parties to these cases.

Despite this order, school desegregation in many places around the country did not occur with much speed at all - deliberate or otherwise. With lower courts guided only by this vague command, an organized resistance quickly manifested across the South, with governors and other state officials refusing to desegregate, some even going so far as to physically stand in the way of students themselves.

Many school districts resisted for a decade or more before desegregating. One district in Mississippi finally conceded that Brown v. Board of Education is the settled law of the land just this year.

Chief Justice Earl Warren and his colleagues on the Court in 1954 made a critical mistake in Brown. They assumed, or perhaps just hoped, quite naively, that state and local officials around the country would operate in good faith and dutifully adhere to the rule of law as they swore to do when they took their oaths of office.

The federal Constitution is the highest law in the land, and the federal Supreme Court is the final word on what the Constitution means, thus all other courts and jurisdictions must follow its commands. When state and local officials vow, in various forms, to defend and follow the constitution, that's what they're supposed to do.

But what if they don't? What if they refuse?

That's the tricky thing about the rule of law: it only works if people play along. The aftermath of Brown made this abundantly clear, but recent events are driving the point home once again.

What happens when government officials have a duty to enforce the law but decide not to? What happens, say, when an elected official violates the law, but nobody responsible for holding him or her accountable has any interest in doing so?

The rule of law simply ceases to have meaning.

Article 2, Section 4 of the Constitution says that an elected official, such as the President, can be removed from office through a process called impeachment:

The President, Vice President and all Civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

Article 1, Sections 2 and 3, put the process of impeachment in the hands of the House of Representatives and the Senate. The House impeaches, and the Senate tries and convicts (or acquits).

So there is a constitutional method of enforcing the law against elected officials. Those who break the law can be removed from office by both houses of Congress working together, one to impeach and the other to convict.

The problem, of course, is that Congress is a political body, and the presidency is a political office. There are only two viable political parties in American politics, and control of the houses of Congress and the presidency each lies in the hands of only one party at a time. So, like in the past, there are times when Congress is controlled by one party and the presidency controlled by the other. Or, like today, Congress and the presidency are controlled by just one party.

When Congress and the presidency are controlled by one party, the weakness of the impeachment clauses reveals itself. A law-breaking president can only be held accountable by Congress. But if Congress and the president are members of the same party, impeachment only happens if Congress rejects its party loyalty in favor of upholding the law in good faith.

That seems like a pipe dream these days. The controlling party is now unwilling to hold its members accountable for anything. Even such serious crimes as obstruction of justice are committed with no fear of impeachment.

Was this inevitable? And if so, how could the Framers of the Constitution make such an egregious oversight when they drafted Articles 1 and 2?

At the time of the Framing, the tribalism of partisan politics in America had not yet entrenched itself. The Framers did not have the benefit of hindsight that we enjoy. But is it true that the Framers simply could not have foreseen our current political reality where party loyalty so totally trumps the rule of law?

Perhaps that was true for some of them, but not for all. One of the Framers was George Washington, and he, a member of no political party, became the country's first president. In his farewell address of 1796, he saw the writing on the wall, and issued this warning:

All obstructions to the execution of the laws, all combinations and associations, under whatever plausible character, with the real design to direct, control, counteract, or awe the regular deliberation and action of the constituted authorities, are destructive of this fundamental principle, and of fatal tendency. They serve to organize faction, to give it an artificial and extraordinary force; to put, in the place of the delegated will of the nation the will of a party, often a small but artful and enterprising minority of the community; and, according to the alternate triumphs of different parties, to make the public administration the mirror of the ill-concerted and incongruous projects of faction, rather than the organ of consistent and wholesome plans digested by common counsels and modified by mutual interests.

Nobody listened.

And now, today, the only effective method to remove law-breakers from the office of the presidency relies entirely on a good faith adherence to the rule of law by partisans who, in the periodic event that they control all of Congress and the Oval Office, may have no political will or even incentive to so adhere.

Like the aftermath of Brown v. Board, our current political reality shows us very clearly that the rule of law depends almost entirely on the good faith of our political leaders. God help us.

Brandeis Impact Litigation Practicum

This semester, I had the honor to help launch the Brandeis Impact Litigation Practicum at the University of Louisville Brandeis School of Law.

Through the practicum, law students are connected to clients who want to influence important legal cases through amicus curiae (friend of the court) briefs.

Amicus briefs, especially at the U.S. Supreme Court, can play a very influential role. They can provide diverse and detailed perspectives beyond the often narrow focus of the parties themselves and help judges reach better decisions in cases that could have a major social impact.

This semester, three very smart UofL Law students wrote a brief on behalf of the National Association For Public Defense and the Kentucky Association of Criminal Defense Lawyers, encouraging the U.S. Supreme Court to review a decision by the Kentucky Supreme Court. In its decision, the Kentucky court put serious limits on the ability of criminal defense attorneys to question the credibility of accusing witnesses. Many criminal cases are "he-said, she-said" situations and witness credibility is the key issue.

The case implicates rights under both the Sixth Amendment and the Fourteenth Amendment and could have a negative impact on criminal defendants across the country. The way our clients see it, a criminal defendant unable to attack the credibility of his or her accuser will often be left with no other defense.

Students Abby Braune, Evan Comer, and Taylor Richard all worked tirelessly on the brief with guidance from me and my fellow professors Dan Canon and Sam Marcosson. The end result is a brief that both they and their clients should be proud of.

The brief can be read here.

Introducing "Heightened Scrutiny"

This past weekend I officially launched Heightened Scrutiny, a podcast about the Supreme Court's landmark civil rights cases. The very first episode explores the people and arguments that led to the important (and infamous) decision in Roe v. Wade.

I will be covering a wide array of important cases with this podcast, which I'm writing, recording, and editing all by myself. I hope to reach a very broad audience, helping everyone (not just lawyers or law students) understand more about how the Supreme Court approached its most famous cases and why it ruled the way that it did in each one.

Each episode will feature archival news reports on the major cases, as well as clips from the oral arguments themselves, in which the Supreme Court justices question the attorneys about the biggest social and legal issues of the day.

Hopefully, Heightened Scrutiny will be an entertaining way for listeners to become constitutional law experts (or maybe just fans) without having to go to law school. A cheaper way, if nothing else. I hope you check it out and enjoy it.

The Judicial Branch Impugned

We live in strange times, my friends. Before the Trump era began, which seems like very long ago already, I would not have believed you if you had told me that the President of the United States would someday use his Twitter account to lambast and impugn sitting federal judges and the entire judicial branch along with them.

I would have laughed.

But just such a thing is the regular practice of our current president. On February 4th, just after his executive order banning immigrants and refugees from certain countries from entering the United States was put on hold by a federal judge (for the fourth or fifth time), Trump tweeted:

The opinion of this so-called judge, which essentially takes law-enforcement away from our country, is ridiculous and will be overturned!

That so-called judge is United States District Judge James Robart, is a nearly fifteen-year veteran of the federal bench. He was appointed by George W. Bush and approved by the Senate 99-0. According to the NY Times, he is a "mainstream Republican" in his personal politics (whatever that means anymore as Trump now leads the GOP), and is generally well-respected.

Robart is hardly the only federal judge whose motives and qualifications have been attacked by Trump. In late May of last year, when he was still just Candidate Trump, the president launched a Twitter war against United States District Judge Gonzalo Curiel. Judge Curiel's offense? He dared be the judge presiding over a lawsuit against Trump University (which ultimately settled before trial). According to Trump:

I have a judge in the Trump University civil case, Gonzalo Curiel (San Diego), who is very unfair. An Obama pick. Totally biased-hates Trump

Trump subsequently attacked Curiel for being a "Mexican" and thus being inherently biased against the candidate who ran on openly anti-Mexican and anti-immigration platforms. And then Trump doubled down on his comments, refusing to apologize.

All this would be a sideshow but for Trump's role as the chief executive of the United States government. As president, he seems strangely unaware of (or unconcerned about) the well-established (and widely known) system of checks and balances upon which our country's government depends. The legislative branch passes laws and approves funding for the executive branch. The executive branch enforces the laws but can also veto them. The judicial branch reviews laws and executive actions for their compliance with the constitution. The executive branch appoints judges to the judicial branch and the legislative branch approves or rejects those appointments.

Trump, however, appears to understand none of this, or at least oppose this system whenever he doesn't get what he wants out of it.

Lest anyone be prone to false equivalence, while it is true that presidents have long discussed or even criticized specific judicial decisions, none have previously suggested that the judges themselves are corrupt or illegitimate for ruling the way they did.

Certainly there have been corrupt and biased judges in the past, and there will be corrupt and biased judges in the future. And many times judges make bad decisions. But the stability of our governing system requires that the executive branch not accuse the judicial branch of illegitimacy any time the president doesn't get his way.

The executive branch will win some court cases and it will lose some. It will sometimes get told it has gone too far. The very basic job of the president in those situations is to firmly disagree with the result, if need be, but never to suggest that the only legitimate branch is his own. Is that too much to ask?

The Law in Literature

One of my favorite classes back in my law school days was Law in Literature. The course was fairly simple: the class read a variety of literary works that included legal themes; the students gathered once a week to discuss them; and each student wrote their own short story for the final grade. I did very well in the class, but more importantly, I enjoyed it.

My favorite genres of literature are science fiction and fantasy. I am largely bored by realistic depictions of the world as we know it. Though character-driven writing is something I like, I also want a world in which the author speculates about alternative possibilities. Alternative government types, alternative technologies, alternative relationships between peoples and races, and, of course, alternative legal systems.

Legal issues generally don't come up much in most popular science fiction and fantasy. But sometimes they do. One of the stories we read in my Law and Literature class was "The Bicentennial Man" by Isaac Asimov. In that story, a robot realizes that he wants to become human, so he embarks on a slow journey to transform himself from cold steel and machinery to warm flesh and blood. He undergoes extensive surgery and replaces his mechanical parts with organic parts, one at a time, until he is entirely organic and not a machine at all.

One of the themes of the story is mortality, of course (robots never die, but humans assuredly do). But another is humanity itself - that is, what it means to be human, and who qualifies. The robot must eventually hire a lawyer who argues that, with a human heart and mind, he qualifies as human and should be freed of the strict laws that regulate everything robots can do, even though he was "born" a robot.

The Bicentennial Man covers a lot of legal ground in very general terms. Asimov was a scientist by training, not a lawyer, so he didn't focus much on the procedural aspects of the robot's legal journey. The reader assumes that the action in court plays out in ways we are already familiar with. The story takes place on future Earth whose society has origins that are most certainly our own.

One could say that Asimov was concerned with substantive due process rather than procedural due process. That is, the questions of what our rights are and who qualifies for them. Procedural due process, by contrast, turns on a question of fairness. Can rights be infringed? And if so, when and how is the government allowed to infringe them?

Elizabeth Moon tackles this latter aspect of the law in her book The Sheepfarmer's Daughter. The book, the first in a trilogy, is about a woman named Paksenarrion who joins a mercenary army as a teenager and eventually finds her destiny as a powerful paladin. Early in the book, "Paks" is involved in a violent altercation with a fellow recruit but that recruit remembers little of the attack and Paks is named as the instigator by a second soldier. The superior officers must solve the mystery, and to do so they initiate a court martial process with several unique aspects.

First, one of the officers is appointed to investigate Paks, who is in the infirmary with serious injuries. Paks, despite her serious wounds, is locked in chains in a prison cell. But the investigating officer senses something is wrong because Paks is seriously hurt but the others are not. The higher-ups are not inclined to believe Paks' story, but the officer makes a compelling case and a full trial is ordered.

In order to conduct the trial, the officers must issue summons to two "witnesses." One, a man, is the mayor of a city. The other, a woman, is a war hero. The witnesses are respected members of the government and military who are trusted for their experience and reputations. They are not lawyers nor appear to have any legal training.

The witnesses arrive and, in front of the entire assembled unit to which Paks and her attacker belong, physically assess the parties involved. At one point, they strip naked both Paks and the recruit accused of fighting with her to inspect their injuries (the other recruit has only bruises and two broken fingers, while Paks is swollen all over and covered in blood). The female witness, noting the obvious discrepancy of the parties' conditions, demands Paks be released from custody and treated for her wounds until the investigation is concluded. The officers immediately comply with her demands - apparently her status as "witness" gives her such authority - and take Paks away from the assembly and to the infirmary.

Then the witnesses - again, in front of the entire assembled military unit - take testimony. They interrogate the investigating officer. They determine more testimony must be taken - especially that of the other soldier who gave the most lucid account of the incident - and refer the proceedings to the jurisdiction of the local monarch, the so-called "Duke's Court."

Eventually, after more physical evidence is assessed and more testimony is taken, the captain of the military unit reaches a verdict "on the basis of the witnesses' reports, conferences with [supervising officers], and an interview with [the other recruit involved]." The Captain gives the full assembled unit an account of his findings, and then orders a combination of punishments including public flogging and exile. 

The investigation and trial are well-told in the story, and make for an interesting spin on the court martial process we apply in our own military. Elizabeth Moon is nothing if not a very thorough writer, and the sequence was a good way to make interesting what could have been a dull recounting of medieval military training.

If we are to speculate about other societies, in space or in medieval fantasy worlds, we should not just speculate about economies and technology. In our world, how we resolve disputes through our legal system is a critical, foundational part of our society. So, too, would it be in some other civilization, far into the spacefaring future or in some alternate dimension where wizards inhabit tall towers and giant lizards haunt the skies.

As I read science fiction and fantasy stories, I make note whenever obvious legal themes arise, and perhaps someday I'll turn my findings into a longer and more formal piece. After all, what could be more fun than a lawyer turning stories about space ships and dragons into a law review article?