May 1 is Law Day. It might not be America’s most popular or well-known holiday, but many of us who are lawyers—who love being lawyers, who are proud to be lawyers—are rather fond of it. A feature of Law Day that makes it special is the opportunity to applaud particular lawyers defending the rule of law in admirable, courageous ways, including inside and outside the government.
But this Law Day demands that we also pay attention to a very different set of actions by lawyers within the Trump period. These are the lawyers who chose not to do the right thing when it mattered—especially those in positions of power within the U.S. government. Often, there was no lack of skill in the art of lawyering shown by these lawyers: they invoked doctrines, cited cases, and wrote down words that looked like law, and perhaps even represented a conceivable view of the law. But they used skill as a substitute for virtue—indeed, as a means to impede it. All told, this is not just a bright moment in American lawyering thanks to those who have fought for the rule of law; it’s also a dark one. And, this Law Day, we must acknowledge and grapple with that ugly manifestation—as a profession, as educators, and as citizens—and turn to a vision of law that’s about not just skill but also virtue.
This brand of lawyering in the Trump era has a template. It is provided by the shortest judicial opinion written in the most significant Supreme Court case in the past three years: the Court’s consideration of Trump’s travel ban, his signature 2016 campaign pledge, the promise so outrageous that it started giving Trump’s unlikely campaign real attention and momentum. The template for use of legal language in place of virtue is Justice Kennedy’s 358-word concurrence in Hawaii v. Trump.
Kennedy joined in full the Chief Justice’s majority opinion upholding Trump’s travel ban. But his concurrence acknowledged that all was not well. After letting stand a travel ban that Trump had originally promised in explicitly anti-Muslim terms, Kennedy observed that, sometimes, courts will hear claims alleging “animosity to a religion.” And Kennedy said that, even though America’s highest court wasn’t vindicating such a claim here, “[t]hat does not mean … officials are free to disregard the Constitution and the rights it proclaims and protects.” Concluding, Kennedy appeared to admit that, seventeen months into Trump’s presidency, the rule of law faced a perilous moment in America: “An anxious world must know that our Government remains committed always to the liberties the Constitution seeks to preserve and protect, so that freedom extends outward, and lasts.”
Kennedy knew better.
He knew something was deeply wrong. But he did nothing about it. Those two dimensions separated him from the two groups of justices on either side of him.
What Kennedy chose was to join the four justices who had no apparent hesitation in finding a complicated legal path to the conclusion that the highest court in the land supposedly had to indulge the claims of Trump’s lawyers that the travel ban before the court was not really an instantiation of the one Trump had promised with such ferocious anti-Muslim language, and that the ban was needed for a (shifting) national security justification, and that there was nothing any court could do about it. There were, as there often are, arguments on both sides; and the five justices in the majority made theirs, with lawyerly language and technical skill.
But Kennedy knew it all was, fundamentally, wrong. Still, he chose to go along, hoping someone else—“officials,” “our Government”—would somehow do the right thing. He made that choice despite knowing that he’d soon be stepping down from the high court, with this his last big chance to do the right thing himself.
Too many lawyers have, over the past few years, followed this path. Consider, for example, the impeachment saga. There were lawyers inside the White House who tried to bury the smoking gun record of Trump’s phone call with Ukraine’s president on a server typically reserved for the most highly classified documents. There were lawyers inside the Justice Department who tried to bury the whistleblower complaint sparked by that call even though the intelligence community’s inspector general had deemed the complaint both “credible” and “urgent” and, in turn, required by federal law to be shared with Congress. There were lawyers inside the White House who declared war on the impeachment inquiry and refused to share any materials or make available any witnesses as the House of Representatives exercised a power to consider impeachment explicitly assigned to it in the Constitution.
The point isn’t that lawyers sometimes do bad things, or at least things that some of us consider bad. The point is that, at each stage, these individuals summoned lawyerly justifications for making the wrong call. Indeed, they’ve often made those justifications public. We can read the Justice Department’s arguments for trying to bury the whistleblower complaint. We can read the White House Counsel’s arguments for refusing to cooperate with impeachment. Many of us disagree—strongly—with what we read; but the lawyers who wrote these documents devised arguments and wrote them with some ability. It’s not a lack of legal skill or technical prowess that defines these documents, at least not universally. It’s their patently and fundamentally unjust result—a result that challenges the rule of law itself, whether by covering up a president’s abuse of power, or silencing someone flagging wrongdoing, or twisting constitutional checks and balances.
It’s all the more disturbing to see government lawyers making these choices. Ordinarily, the adversarial nature of America’s legal system means that even lawyers short on virtue get checked, in a sense, by opposing counsel making contrary arguments and then by judges ruling on who’s right. If, in that setting, a lawyer advances arguments that undermine the rule of law, we expect those arguments to lose in the crucible of competing advocacy and (ideally) neutral adjudication. But those of us who’ve been government lawyers have long been taught to hold ourselves to a much higher standard. That’s in part because our client is the American people as a whole, rather than some narrowly interested party. It’s also because many critical issues tackled by government lawyers are not subjected to the external check of adversarial argument and neutral adjudication. Government lawyers—especially government lawyers working on national security issues—offer a wide range of consequential views that never get tested by opposing counsel or judicial scrutiny. So, these lawyers must provide that check to themselves, by meeting a higher standard. That’s why, as Neal Katyal has noted in a lecture about the Solicitor General confessing error, the Attorney General’s beautiful Justice Department conference room has carved on its top: “The United States wins its point whenever justice is done its citizens in the courts.” The point, for government lawyers, isn’t to win, or to cook up some legal justification for a preferred outcome. The point, instead, is to see justice done.
These are the reasons that these incidents in which legal positions yield unjust results should concern us this Law Day. In each of these cases, the challenges to the rule of law have been compounded by other lawyers making similarly regrettable choices. And that’s why it’s not enough to deploy legal skill to choose one set of arguments over another, then hope that some other actor will do what’s clearly the right thing. We need lawyers to choose the right thing themselves. And we need it before next year’s Law Day—before the delicate constitutional system we’ve built shatters.
So, this Law Day, let’s of course cheer the many lawyers fighting for the rule of law in the United States and beyond. But let’s also make clear that the majesty of law is not merely a matter of skill—it’s also a matter of virtue. And, as lawyers, educators, and citizens, let’s remember that, often, there are conceivable legal arguments on both sides—but real-world disaster on only one. It’s on us, not someone else, to do the right thing.
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