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President Trump has been very busy in the first two months of his 2nd term. Among the President's targets has been law firms whose lawyers he intensely dislikes, and whose engagement in litigation and client representation he finds contrary to the public interest as he sees it. I have suggested both the contours and the challenges these actions raise--for everyone. See (1) Next on the Block: President Trump Issues an Executive Order -- "Addressing Risks from Jenner & Block"; (2) The
Flaming Sword of Contradiction: President Trump Issues Direction to the
Attorney General and Homeland Security: "Preventing Abuses of the Legal
System and the Federal Court "; (3) President
Trump and the Paul, Weiss Law Firm Reach a Deal--The Presidential
Directive Issued Against Them has been Withdrawn: The Outlines of a
Merchant Transactional Phenomenology and the Role of Lawyers; and (4) President Trump on "Addressing Risks from Paul Weiss" and the Relationship Between Government and Outside Counsel.
In addition, President Trump has moved in quite aggressive ways to challenge contemporary practices and expectations around the remedial power of courts, especially in equity, and the current understanding of the separation of powers, the authority of each branch within its core of authority, especially advancing a fairly extreme form of a unitary executive theory (e.g., Interview: Secretary of State Marco Rubio with Hugh Hewitt on China, Iran, Israel, Deportations, and Judicial Oversight/Interference; The Judicial Equity Power, the Lawyer, and the Legalization of Politics). Mr. Trump has also sought to challenge universities in their operations and in the ways in which they structure themselves internally. Whether or not these challenges succeed, or at least succeed in reshaping the political and institutional framework of the Republic, remains to be seen. The actions, and reaction, has a long contemporary history in the United States, with what may perhaps be the genesis of what the Trump administration believes it is advancing in the 1980s and perhaps best remembered today by the writing of then Attorney General Meese (Edwin A. Meese III, “The Law of the Constitution,” Tulane Law Review 61 (1987): 979). That position was rejected by many on the political "left" as defined at the time; an excellent example was preserved in Volume 61(5) of the Tulane Law Review (e.g. Sanford Levinson, "Could Meese Be Right This Time?", 61(5) Tulane Law Review (1987). And its sense at the time was perhaps well captured by Mark Tushnet:
There may, therefore, be a sense in which Attorney General Meese's position does promote anarchy-not, as his critics suggested, in the immediate sense of urging "every person a law unto herself," but in the indirect sense of showing that law is another form of politics. But, of course, Attorney General Meese does not believe that either. For the point of his speech is to demonstrate that the Supreme Court's decisions or, at least, those with which he disagrees are not properly regarded as "law" at all, but merely as expressions of the Justices' personal preferences. So, in the end, the problem is not so much that Meese is wrong or lawless; it is that he is hypocritical. (Mark Tushnet, The Supreme Court, The Supreme Law of the Land, and Attorney General Meese: A Comment," 61(5) Tulane Law Rev. 1017, 1025 (1987)
That paragraph may well capture the essence of the evolution of the position first captured by Attorney General Meese (for our times) into the form it takes at the start of the 2nd Administration of President Trump. Its essence may well be this: if one starts with the proposition that rule of law as practiced in this century in the United States subsumes all politics within it; that is that politics, and its normative foundations are, in essence, framed by and subject to the interpretive power of law, including the "higher law" of the constitution, then it might well be possible to embrace a presumption (rejected in the 1980s) that law is another form of politics, and that at least in that regard, the courts, like everyone else in the U.S. is a political actor--personally and institutionally. The question, then is not whether a judicial (or for that matter an administrative or legislative) decision is a product of "personal preference" or impersonal application of law (to politics) as any of these actors see it (bringing to that determination whatever conceptual cage they draw on, which is personal preference one step removed from substantive determinations). The question, then, is the allocation of the authority to "declare" and "apply" law, within that environment, and subject to this imagining of the consequences of the "triumph" of law over politics (or the rule of politics as law in the form of its sensibilities, ceremonies, and normative cognitive pathways, not anarchy in this sense but order grounded in ideologies of law with national characteristics) conceits) where the fundamental organizing principle of power allocation is fractured and built on consensus to actually work. This is suggested by the apparent belief that public litigation (at least) is strategically aimed toward political ends for which purpose the courts serve as a willing instrument, that the evolution of judicial (at least equity) remedial powers suggest a breach of the separation of powers within this law as politics within the performative space of courts, and that the universities are inculcating students with a set of normative-political values that also make them "players" in the political field. One does not have to agree with this to understand its potential reality shaping power for others. And that might prove a useful doorway for examining one's own generative cognitive cages.
If one is of a mind to embrace this way of understanding "the way things work" (ideological-cognitive baselines within the U.S. economic-political model in the current stage of historical development) then the idea of rejectionism becomes both quaint and obsolete (though still strategically useful as a discursive trope). The object under this way of "seeing things" is transformation of practice--and the sensibilities of practice (the phenomenology of a law-politics axis)--to conform to the (new) ideal of the rule of law-politics state. In a sense this might be understood as one of the (naughty?) children of realism and of strains and implications of the old critical studies movement (though of course from the perspective of the 1980s-1990s, its practitioners might be appalled at the normative turn) (Cf., Retaining Judicial Authority: A Preliminary Inquiry on the Dominion of Judges; Chroniclers in the Field of Cultural Production: Courts, Law and the Interpretive Process). But it does suggest that one of the under-considered consequences of a vigorous and increasingly comprehensive rule of law system (not just traditionally understood deep rule of law, but rule of law as the fundamental basis for ordering all aspects of social relations in a political-economic variant of liberal democracy with increasingly comprehensive tastes for managing humans and human social relations.
It is thus no wonder that, in this form, and whether the (possible) full implications are understood, that those who continue to embrace the old cognitive cages of American rule of law and its structural and interpretive hierarchies, would find substantially threatening (on a fundamental level) the transformations undertaken in an iterative action oriented sequence, to be highly threatening to evolving but established practice and its grounding premises. They are, of course, right to perceive the threat to their normative vision and established practice expectations, especially as a function of the strength of their belief in the value and legitimacy of the current state of institutional practices and expectations. The perception of threat (and its actualities) have only grown since 2021as the source of worry has increased as the threat moves from the courts to the executive branch, requiring action to protect the (lower) courts against, perhaps, both.
The response to this threat, then, has now appeared to produce something like a further evolution of an orthodox view among academic and other thought leaders in the Republic. That orthodoxy focuses on three distinct framing elements. The first is the proper approach to the narrative of events source the start of the Second Term of Mr. Trump at least with respect to the judiciary, the courts, and lawyers. The second focuses on the proper analytic lens for situating this narrative within and against an ideal of the proper relationship between lawyers, courts and the state. This requires, in turn, the production of the ideal vision of each of these critical analytics elements. The third touches on the activist response for those embedded in this orthodox narrative and analytics. And yet, from the perspective of an Administration that (whether it is conscious of this or not) rejects the fundamental ordering/rationalizing premises on which these Statements are built, none of this will make much sense. The times, it seems, has brought us to a appoint where people (and institutions) do not just talk past each other, they invest a common set of words with substantially different meanings derived from what appears to be increasing incompatible normative starting points. None of this augurs well for convergence, but appears to be the stage setting for politics in the remainder of this decade.
One variation of this narrative, discursive, and action stance has been circulated by leaders of the Association of American Law Schools (AALS) in the form of a Statement, "Standing Together in Support of Higher Education and the Legal Profession," dated 25 March 2025. The text of that Statement follows below. The AALS has already produced a Statement, Statement of the Association of American Law Schools on Executive Branch Compliance with Court Orders circulated 18 February 2025. The Statement from AALS Leaders is well worth considering, not merely because it represents what may be the consensus view of a number of legal academics and others, but also for its narrative stances, analytics and action oriented pathways.
Another variation has taken the form of a short "Bar organizations’ statement in support of the rule of law," dated 26 March 2025. The text of that Statement also follows below. These also reflect the characterization of the actions of the Trump Administration that aligns with the discursive stance of the AALS Statement. In both cases, the categorical challenges of President Trump have been met with an equally categorical rejectionist front by those opposed to the President's actions. Both are grounded on substantially irreconcilable ideals and each measures the failures of the current system or the threat of challenges to that system by reference to these ideals. But those ideals are also expressed in substantially different ways. The Trump administration speaks the language of inductive phenomenology, where action accumulates into theory; bar associations and academic leaders embrace a century old impulse toward deductive ideology, where principles shape action. A meeting of the two is unlikely.
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March 25, 2025
Standing Together in Support of Higher Education and the Legal Profession
Dear Friends,
Over the last month, we have seen the Trump administration target in unprecedented and escalating ways legal and educational institutions that are at the heart of our profession. Those governmental actions strike at the core of ordered liberty and threaten our freedoms of speech and association, the independence and impartiality of our courts, the right to counsel, due process, and the rule of law itself.
We write to underscore the seriousness of these actions, both individually and cumulatively, and why all lawyers and educators across the political and ideological spectrums should work together toward restoring our nation’s commitments to fairness and good governance. While remaining mindful that each institution and its students, staff, faculty, administrators, and alumni have a range of political and ideological perspectives, we suggest several actions that should help to bolster the conditions in which law and education may continue to thrive.
The actions taken against universities are significant.1 Last week, financial ratings agency Moody’s downgraded its outlook for colleges and universities because of what the federal government has done. Universities in other parts of the world are seeing an uptick in applications from U.S.-based researchers, which has been described as a “U.S. brain drain.”
The Trump Administration has also broadened its campaign of retaliation against the legal profession.2 Over the last few weeks, attacks on judges, on law firms (including Covington & Burling, Perkins Coie, and Paul Weiss), the American Bar Association, and lawyers associated with the ABA have intensified. Late Friday night, President Trump directed Attorney General Bondi to take steps against lawyers and law firms that litigate against him, particularly singling out immigration lawyers for representing their clients. The U.S. Marshals Service has warned that threats against judges have surged as the administration has called to punish and impeach judges for doing their jobs.
1 The actions at issue include dozens of investigations, targeting foreign-born academics and international students, promises to defund universities that do not quash campus protests, unlawful threats to law schools, and the dismantling of the Department of Education. They also include freezing billions of dollars in scientific and other research funding and revoking millions in grants and contracts (with prominent examples at Columbia, John Hopkins, and the University of Pennsylvania).Taken together these actions seek to chill criticism, silence those who may seek to hold the executive branch accountable and intimidate lawyers. As over one thousand attorneys in large law firms have written, “Over the past several weeks, the Executive Branch has launched an all-out attack aimed at dismantling rule-of-law norms, including by censuring individual law firms by name because of past representation.” Of course, punishing lawyers for their lawful representation and advocacy is unconstitutional, violating the First Amendment and undermining the Sixth Amendment.
2 Since assuming office, the President has fired government lawyers and watchdogs, launched broad investigations of law firms, and issued orders designed to make it harder to oppose the administration even when there are concerns about the legality of its actions. At the same time, the administration has ignored long-standing precedent, reinterpreted outdated laws to expand executive authority, and “taken dozens of actions that appear to violate federal statutes, the Constitution, or both.” Recently the administration appears to have defied court orders.
The independence of our universities and judiciary, and the ability of lawyers to fully represent their clients, are at the core of our democracy and have long been supported by all Americans, regardless of political party. Whether the policy ends are favored or not, the government must comply with the law. It is not a partisan matter to raise concerns that the methods by which the administration is threatening universities, the judiciary, and the legal profession are unlawful and unconstitutional. More than a thousand law professors, who “have a variety of views on the underlying policies at issue” have explained in a bi-partisan letter how “we are in a constitutional crisis.” Or, as another commentator has written: “The result, if all goes through, will be nothing less than the permanent diminishment of research universities and an upheaval of the free speech principles at the core of the country.”
In the legal profession, the fear of government retaliation is palpable and dangerous. Lawyers must be able to continue their traditional role of representing the unpopular or politically powerless, who without representation would not have their day in court. Actions that target individuals and firms based on viewpoint are also unlawful, constituting “unconstitutional viewpoint-based retaliation,” which violates “the right of freedom of association.” The judiciary must also be independent and free from intimidation so that it may properly hold the executive branch accountable when it violates the law. Nearly all judges believe the public’s respect for judges has declined as a result of the polarization. Recent threats are particularly dangerous and will only further erode trust in our judicial system.
To be clear, the concern is not a substantive disagreement over whether certain immigrants may be deported or have their statuses revoked, or whether protesters who broke laws can be charged and prosecuted, or whether certain universities should change policies, or whether judicial decisions can be disagreed with or criticized. Rather, the issue is whether the President and the executive branch can ignore existing laws, processes, and separation of powers that protect against arbitrary executive action without due process. At stake is the core of what it means to be a free society, of which universities and the legal profession are a critical part. Every American, regardless of political or ideological affiliation, is affected
We ask for unity in insisting that the attacks on our courts, on the legal profession, on lawyers, and on our universities are wrong and must cease. We join the American Bar Association and others who have “call[ed] upon the entire profession, including lawyers who serve in elected positions, to speak out against intimidation.” We also join those who “call on the judiciary, bar associations, law firms, and individual lawyers to speak out against this dangerous assault on the legal profession and the rule of law.” We share the concerns of hundreds of political scientists who have expressed “urgent concern about threats to the basic design of American government and democracy.”
We therefore encourage our member schools—but also other organizations in legal education and the legal profession—to join in nonpartisan ways to help educate the public before more harm occurs. Some steps schools may wish to consider:
• Expanded Programming on the Rule of Law and Separation of Powers. We applaud the Big 10 Academic Alliance Law Schools for hosting and streaming a webinar series on the Rule of Law. We encourage others to offer similar programs and expand civic education, committing ourselves to open debate with a range of perspectives, but in a way that defends the courts and our legal system.
• Public Support, Both Vocal and Quiet. We encourage leaders and faculty to stand firm behind those who are pushing back on unlawful government action. Several college presidents have recently issued statements about the importance of university independence. We also recognize, however, that quiet work behind the scenes is equally important. This is a time to come together, to recognize that while we may be positioned differently, we all need to support core values and one another. We encourage law school leaders to reach out to their alumni who hold elective office at the state and federal level to discuss their community's concerns and urge action.
• Support the Judiciary and the Bar. We urge law schools to reach out to local judges, state courts, and local bar associations to ask them to help but also to provide them assistance. Judges must be able to do their jobs without fear of violence or undue influence. Leaders in the legal profession should continue to condemn attacks on judges for simply doing their jobs.
• Explore Additional Mission-Aligned Collaborations. We ask law schools to explore within their universities and communities additional mission-aligned collaborations that can help build broad coalitions and further support for the rule of law. Consider other departments and schools on campus, local justice-related organizations, faith-based initiatives that promote justice and human flourishing, labor organizations, and businesses that depend upon the rule of law to thrive.
• Reach out to Visiting Scholars, Foreign-Born Scholars, and International Students. Our foreign-born scholars and international students are particularly vulnerable. The administration appears no longer concerned with only unlawful immigration but seeks to punish foreign-born residents who are here lawfully but who express views critical of or different than the administration. We encourage schools to reach out and provide support.
• Speak with Your Alumni. Law schools should tell more stories about how law schools and universities matter and explain in real terms how recent government action will impact your communities. Law schools and universities have been essential for promoting public health, civic engagement, economic growth, and national security. Law schools provide critical services to low-income and needy individuals. Often universities are the largest employers in their regions. Many are engines of upward mobility for everyone in our society.
Actions that weaken law schools and universities, the legal profession, and the judiciary, hurt all Americans. The Association will continue to do its part to provide information to deans and others during webinars, Deans Dialogues, and other events. We will continue to support organizations that seek to protect the integrity and functioning of our universities, our law schools, and the legal profession. We have included below a list of some statements and recent analysis of the actions of the administration against law and higher education and the harm those actions will cause.
The volume and unprecedented nature of these actions have understandably left many of us feeling overwhelmed. The Association condemns in the strongest possible terms actions by the government aimed at chilling the profession and undermining the judiciary and our universities. We urge our law schools to stand together behind core values that support the rule of law and our constitutional order.
Sincerely,
Austen Parrish
President, Association of American Law Schools
Danielle M. Conway
President Elect, Association of American Law Schools
Melanie Wilson
Immediate Past President, Association of American Law Schools
Kellye Y. Testy
Executive Director and CEO, Association of American Law Schools
March 26, 2025
Bar organizations’ statement in support of the rule of law
CHICAGO, March 26, 2025 — We the undersigned bar organizations
stand together with and in support of the American Bar Association to
defend the rule of law and reject efforts to undermine the courts and
the legal profession.
In particular, as outlined by the ABA:
We endorse the sentiments expressed by the chief justice of the U.S.
Supreme Court in his 2024 Year End Report on the Federal Judiciary,
“[w]ithin the past year we have also seen the need for state and federal
bar associations to come to the defense of a federal district judge
whose decisions in a high-profile case prompted an elected official to
call for her impeachment. Attempts to intimidate judges for their
rulings in cases are inappropriate and should be vigorously opposed.”
We support the right of people to advance their interests in courts of
law when they have been wronged. We reject the notion that the U.S.
government can punish lawyers and law firms who represent certain
clients or punish judges who rule certain ways. We cannot accept
government actions that seek to twist the scales of justice in this
manner.
We reject efforts to undermine the courts and the profession. We will
not stay silent in the face of efforts to remake the legal profession
into something that rewards those who agree with the government and
punishes those who do not. Words and actions matter. And the
intimidating words and actions we have heard and seen must end. They are
designed to cow our country’s judges, our country’s courts and our
legal profession.
There are clear choices facing our profession. We can choose to remain
silent and allow these acts to continue or we can stand for the rule of
law and the values we hold dear. We call upon the entire profession,
including lawyers in private practice from Main Street to Wall Street,
as well as those in corporations and who serve in elected positions, to
speak out against intimidation.
If lawyers do not speak, who will speak for our judges? Who will protect
our bedrock of justice? If we do not speak now, when will we speak? Now
is the time. That is why we stand together with the ABA in support of
the rule of law.
American Bar Association
Alameda County (California) Bar Association
Alexandria (Virginia) Bar Association
Allegheny County Bar Association (Pennsylvania)
American Immigration Lawyers Association
Appellate Lawyers Association
Arab American Bar Association of Illinois
Association of Professional Responsibility Lawyers
Bar Association of Erie County (New York)
Bar Association of Metropolitan St. Louis
Bar Association of San Francisco
Berks County (Pennsylvania) Bar Association
Boston Bar Association
Boulder County (Colorado) Bar Association
Chicago Bar Association
Chicago Council of Lawyers
Cleveland Metropolitan Bar Association
Columbus (Ohio) Bar Association
Connecticut Bar Association
Contra Costa (California) County Bar Association
Detroit Bar Association and Foundation
Erie County (Pennsylvania) Bar Association
First Judicial District Bar Association (Colorado)
Hawaii Women Lawyers
Hennepin County (Minnesota) Bar Association
Hispanic National Bar Association
Hudson County (New Jersey) Bar Association
Illinois State Bar Association
International Society of Barristers
Kansas Bar Association
Kansas City Metropolitan Bar Association
Kansas City Metropolitan Bar Foundation
Lawyers Club of San Diego
Long Beach (California) Bar Association
Los Angeles County Bar Association
Louisville Bar Association
Maine State Bar Association
Maricopa County Bar Association
Massachusetts Bar Association
Massachusetts LGBTQ Bar Association
Middlesex County (New Jersey) Bar Association
Milwaukee Bar Association
Minnesota State Bar Association
Monroe County (New York) Bar Association
Muslim Bar Association of Chicago
Nassau County (New York) Bar Association
National Arab American Bar Association
National Arab American Bar Association - Michigan Chapter
National Asian Pacific American Bar Association
National Association of Women Lawyers
National Conference of Bar Presidents
National Filipino American Lawyers Association
National LGBTQ+ Bar Association
National Native American Bar Association
New Jersey Women Lawyers Association
New Mexico Black Lawyers Association
New York City Bar Association
New York County Lawyers Association
North County (California) Bar Association
Board of Governors of the Oregon State Bar
Palestinian American Bar Association
Passaic County (New Jersey) Bar Association
Philadelphia Bar Association
Queens County (New York) Bar Association
Ramsey County (Minnesota) Bar Association
San Diego County Bar Association
San Fernando Valley (California) Bar Association
Santa Clara County Bar Association (California)
South Asian Bar Association of North America
State Bar of New Mexico
Virgin Islands Bar Association
Board of Governors of the Washington State Bar Association
Women's Bar Association of the State of New York
Worcester County (Massachusetts) Bar Association
The ABA is one of the largest voluntary associations of lawyers in the world. As the national voice of the legal profession, the ABA works to improve the administration of justice, promotes programs that assist lawyers and judges in their work, accredits law schools, provides continuing legal education, and works to build public understanding around the world of the importance of the rule of law. View our privacy statement online. Follow the latest ABA news at www.americanbar.org/news and on X (formerly Twitter) @ABANews.
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