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October 22, 2017

Incoming Chair Robert N. Weiner on the Rule of Law

The Section on Civil Rights and Social Justice has urged lawyers to join our efforts to protect the “rule of law.” Indeed, we have explained that now, more than ever, it is important to get involved. But what is this “rule of law” we are exhorting lawyers to defend? On one level, the answer is straightforward. It is the principle that everyone, including the government, is equally accountable under the law. It is a commitment, Justice Kennedy has stated, to individual freedom, justice, and equality. These descriptions may be accurate and useful in many contexts. But some lawyers—be they scholars, cynics, or hard-nosed realists—deem the substance elusive, and the sentiments, clichéd. So I would like to show concretely, through two examples, what the rule of law is, what it is not, and why it is important.

In 1957, the federal court in Little Rock, Arkansas ordered that African-American students be admitted to Central High School. The local officials in Little Rock were prepared to comply, but Governor Orval Faubus objected. He claimed that, “there is no duty on state officials to obey federal court orders” to implement Brown v. Board of Education. Directly defying the Court’s orders, Faubus directed the Arkansas National Guard “to place off limits to white students those schools for colored students and to place off limits to colored students those schools heretofore operated and recently set up for white students.” To enforce that directive, the Arkansas National Guard was stationed in front of Central High. Faubus claimed that the troops were there to prevent violence, but city officials perceived no such risk, at least not until Governor Faubus created it.

The federal court, finding that Faubus had sought “to obstruct and interfere with the carrying out and effectuation of this court’s orders,” ordered the State not to block entry to the black students at Central High. Faubus then withdrew the troops entirely, leaving the students unprotected to fend with the crowd that he, by that point, had whipped up to a racist froth. Predictably, the crowd prevented the students from entering the school.

President Eisenhower now had to decide whether to enforce a Court order that he doubted had been wise. Eisenhower was not entirely comfortable with court-ordered desegregation. He worried that such compulsion invited resistance, and he had reproached Chief Justice Warren about the Brown decision. But Eisenhower did not hesitate. As he told the American people in a special televised announcement, “The Federal law and orders of a United States District Court implementing that law cannot be flouted with impunity by an individual or any mob of extremists.” He stated that he would use “whatever force may be necessary to prevent any obstruction of the law and to carry out the orders of the Federal Court.” He therefore ordered the 101st Airborne Division into Little Rock. They arrived the next day in fifty-two aircraft, 1,000 strong, and escorted the nine black students into Central High School.

Fifty years later, a different iteration of the Nation’s persistent racial and ethnic problems, a modern-day analogue of Little Rock, arose in Arizona. Joe Arpaio, the Sheriff in Maricopa County, Arizona, oversaw a hard-knuckled law enforcement campaign against illegal immigration, with ethnic profiling of Hispanics, abuse of individuals detained for suspected of being illegal aliens, and squalid conditions in the county jail. In 2009, the federal government revoked the authority of Sheriff Arpaio’s department to enforce the federal immigration laws. In December 2011, Judge Murray Snow in Arizona issued a preliminary injunction barring Arpaio and his officers from detaining any person based solely on “knowledge or reasonable belief” that the person is not legally in the United States.

Arpaio was unrepentant. Three months after this order, he told a reporter that he was still detaining and arresting illegal immigrants, and that he would continue to do so. A month later, Arpaio defiantly proclaimed to an interviewer that he would “never give in to control by the federal government.” In January 2013, despite advice from the county’s lawyers to stand down, Arpaio issued a news release stating that, “[u]ntil the laws are changed, my deputies will continue to enforce state and federal immigration laws.” In the meantime, the case in which Judge Snow entered the preliminary injunction continued to yield evidence of racial profiling and abuse of detainees. In May 2013, Judge Snow permanently enjoined Arpaio’s office from detaining Latino drivers in Maricopa County based on the suspicion that they were illegal immigrants.

Arpaio, however, continued to defy the court’s orders. Judge Snow held him civil contempt in May 2017. Three months later, in July 2017, a different federal judge convicted Arpaio of criminal contempt for his willful defiance of Judge Snow’s orders.

Three weeks after that conviction, before Arpaio had even been sentenced, and without any request from Arpaio, President Trump pardoned him. Typically, the Department of Justice evaluates requests for a pardon and provides a recommendation to the President. The Department has developed detailed rules to guide the analysis. President Trump did not even to consult the Justice Department prior to the pardon grant. Instead, he ignored decades of practice regarding the appropriate circumstances for clemency. How did the President justify this rush to no judgment? Arpaio, Trump declared, was “a great American” who was keeping the community safe. In the President’s view, Arpaio had been persecuted by holdovers from the Obama Administration merely for “doing his job.”

So what, then, do these events reveal about the “rule of law” and why it is important now? The answer reminds me of a doctrine I learned about in first year torts at law school. It has no legal connection here, but nonetheless reflects a concept that seems particularly apt—res ipsa locquitur. The phrase translates to, “The thing speaks for itself.”

Indeed it does.

Robert N. Weiner 2017-18 Section Chair 

Robert N. Weiner is Chair of the ABA Section of Civil Rights and Social Justice and a Partner at Arnold & Porter Kaye Scholer LLP.