Harvard Law School v. Vermeule

Dueling letters from 90+ members of the HLS faculty and Adrian Vermeule

Yesterday, more than ninety members of the Harvard Law School faculty issued a statement concerning the rule of law:

We are privileged to teach and learn the law with you. We write to you today—in our individual capacities—because we believe that American legal precepts and the institutions designed to uphold them are being severely tested, and many of you have expressed to us your concerns and fears about the present moment. Each of us brings different, sometimes irreconcilable, perspectives to what the law is and should be. Diverse viewpoints are a credit to our school. But we share, and take seriously, a commitment to the rule of law: for people to be equal before it, and for its administration to be impartial. That commitment is foundational to the whole legal profession, and to the special role that lawyers play in our society. As the Model Rules of Professional Conduct provide: "A lawyer is … an officer of the legal system and a public citizen having special responsibility for the quality of justice."

The rule of law is imperiled when government leaders:

• single out lawyers and law firms for retribution based on their lawful and ethical representation of clients disfavored by the government, undermining the Sixth Amendment;

• threaten law firms and legal clinics for their lawyers' pro bono work or prior government service;

• relent on those arbitrary threats based on public acts of submission and outlays of funds for favored causes; and

• punish people for lawfully speaking out on matters of public concern.

While reasonable people can disagree about the characterization of particular incidents, we are all acutely concerned that severe challenges to the rule of law are taking place, and we strongly condemn any effort to undermine the basic norms we have described.

On our own campus and at many other universities, international students have reported fear of imprisonment or deportation for lawful speech and political activism. Whatever we might each think about particular conduct under particular facts, we share a conviction that our Constitution, including its First Amendment, was designed to make dissent and debate possible without fear of government punishment. Neither a law school nor a society can properly function amidst such fear.

We reaffirm our commitment to the rule of law and to our roles in teaching and upholding the precepts of a fair and impartial legal system.

To be sure, this statement was not issued in the name of Harvard University, or the law school. But this statement was signed by a significant portion of the faculty. At quick glance, a few names are missing: co-blogger Steve Sachs, Jack Goldsmith, and Adrian Vermeule, among others. Quite fittingly, Vermeule has written a response.

Vermeule identifies a problem: how are students who agree with President Trump's policies to approach professors who have castigated Trump as antithetical to the rule of law?

Among you, the students of Harvard Law School, there is a surprisingly large and intellectually powerful contingent who are conservative in some sense or other, many of whom support the current President and the legal policies of his administration. What exactly are you supposed to think when an overwhelming supermajority of the faculty, although purporting to speak "in their individual capacities," jointly condemn those policies? You might be forgiven for wondering if you will get a fair shake during your time at the law school. Perhaps that concern will turn out to be objectively warranted, or perhaps it won't. But the concern in itself is entirely legitimate, and as the collective letter speaks to the "fears" of other students without asking whether those fears are objectively justifiable, it seems only fair to do the same in the other direction.

The professors are certainly concerned how students who agree with them will react. But what about students who disagree with them? Their concerns simply are not as important.

Vermeule writes further that these signatories were silent during breaches over the past four years:

Where were the letter's signatories when federal prosecutors took the unprecedented step of bringing dozens of criminal charges against a former president, who also happened to be the leading electoral opponent of the then-incumbent president? Where were the signatories when Jeff Clark, Rudy Giuliani, John Eastman, and other lawyers were disbarred or threatened with disbarment, and indeed prosecuted, for their representation of President Trump? Was this not a threat to the rule of law? Where were the signatories when radical activists menaced Supreme Court Justices in their homes, or when a mob hammered on the doors of the Supreme Court itself? Where were the signatories when the Senate Minority Leader shouted to an angry crowd outside the Court that "I want to tell you Gorsuch, I want to tell you Kavanaugh, you have released the whirlwind and you will pay the price. You won't know what hit you if you go forward with these awful decisions"? Were these not also literal threats to the rule of law?

As I recall, Professor Tribe, one of the signatories, urged President Biden to renew the eviction moratorium even after the Supreme Court clearly stated it was unlawful. Was this a breach of the rule of law?

Another one of the signatories of the Harvard letter is Richard Fallon. I think Fallon's joining this letter is especially striking in light of his important work on the problems with scholar amicus briefs. More than a decade ago, Fallon wrote that "many professors compromise their integrity by joining such briefs too promiscuously." He urged "standards that professors should insist upon before signing amicus briefs that they do not write." Fallon was and is right.

In December 2016, I discussed the relationship between scholar amicus briefs and scholar letters:

Fallon's critique about scholars' briefs applies equally to scholars' letters. Here, the 1,100 professors who signed the letter had absolutely no role in its drafting. Take it or leave it. To the extent that they all agree with every sentence of the letter, then the statement must be so anodyne that it adds little beyond what the New York Times editorial page has already said. Imagine an actual law school workshop attended by over 1,000 professors–would anything be agreed upon?!. Law professors would never add their name to a law review article they didn't write. Why are scholars' letters any different?

The more things change, the more they stay the same.