“The first thing we do, let’s kill all the lawyers†is a famous quote by Dick the Butcher from William Shakespeare’s play “Henry VI†that is especially relevant in today’s political climate. This quote is often misused to express frustration with lawyers or the legal process. However, the point that Shakespeare makes is that, for tyranny to prevail, lawyers must be neutralized first. Lawyers and judges are the protection society has for the rule of law.
The rule of law is rarely thought about and challenging to define, even for lawyers. The best definition I can give is that everyone, including those in power, is accountable to the same laws, which promote fairness, justice and stability. The rule of law is the bedrock of our society. Our rule of law in America promotes freedom, democracy, the ability to feel safe in our homes and community, the private ownership of property and the ability to enter into enforceable contracts.
Our rule of law gives us the right to life, liberty and the pursuit of happiness.
The rule of law in America is under attack. President Donald Trump is issuing executive orders that prohibit law firms from conducting business. The president and other political leaders are calling for the impeachment of judges who rule against the administration. House Speaker Mike Johnson, a former dean of a defunct law school, is talking about eliminating courts and reducing their funding because they dare to rule against the administration. The president and others in his administration talk openly about the possibility of defying court orders.
You have a U.S. senator, a former Florida attorney general, proposing “special courts†to get around judges who rule against the administration. What is especially hard to comprehend is that our leaders who went to law school and have held significant roles in the legal field are among the ones who are speaking out against the rule of law.
The executive orders against private law firms are unprecedented and without merit. They were issued because the firm or a lawyer within the firm has either investigated or litigated against the president. The fact that some of these firms are challenging these orders speaks highly of the legal field. They are great examples of lawyers fighting to protect the rule of law. It disheartens me to see some of these firms capitulate to these orders. They appear to be putting their profits and country club memberships over the rule of law and society.
One does not have to agree or disagree with the decisions that have upset the administration to be for the rule of law. U.S. Supreme Court Chief Justice John Roberts said it best: “For more than two centuries, it has been established that impeachment is not an appropriate response to disagreement concerning a judicial decision. The normal appellate review process exists for that purpose.†The administration could have appealed the adverse decisions and still respected the rule of law.
History gives us great examples of the preservation of the rule of law. When the Brown v. Board of Education case was decided in 1954, President Dwight Eisenhower agreed with the decision that segregation in schools was unconstitutional. Still, he preferred a more gradual approach to desegregation. However, he preserved the rule of law and sent federal troops to Little Rock, Arkansas, to ensure the integration of Central High School.
Proponents of attacking the rule of law today cite President Andrew Jackson’s comment about the decision in the 1832 case of Worchester v. Georgia, a Supreme Court decision concerning who could be on the Cherokee Nation land, where Jackson allegedly quipped, “John Marshall has made his decision, now let him enforce it.†However, this “quote†never appeared until 20 years after his death, his leading biographer doesn’t think he ever made it and, most importantly, the decision itself did not require him to do anything to enforce it.
One era in which the rule of law did not survive was Germany in the 1930s. Adolf Hitler hated lawyers and promised to “make every German realize that it is a disgrace to be a lawyer.â€
On April 7, 1933, a law was passed that removed Jews and certain other lawyers from the practice of law. That same law mandated the removal of all Jewish, Social Democrats and other “politically unreliable†judges and prosecutors from their positions. Jewish and politically progressive members of law faculties were dismissed and replaced with Nazi-sympathetic faculty members. Later that year, Hitler established special courts throughout Germany to try politically sensitive cases.
In 1934, when he was dissatisfied with a not-guilty verdict in a case, he created the “People’s Court,†to try treason and other important “political†cases. A new rule of professional ethics was established that mandated an ethical duty of all lawyers to show unwavering support for Hitler and his policies, a position that sounds eerily similar to statements being made by current leaders in the Department of Justice. The failure of the rule of law ultimately led to the Holocaust.
I hope the lawyers and judges charged with protecting the rule of law in our country succeed in their mission. The overwhelming majority of the judges and most of the lawyers I know are committed to its protection. Being a judge is an incredibly difficult job, and almost all judges serve with honor and distinction. The attacks that are currently being made on them and the rule of law are unfounded and un-American.
William S. Thompson is a former U.S. attorney for the Southern District of West Virginia.
