Len Niehoff, Professor from Practice, University of Michigan Law School
ABA Litigation Section Annual Conference
Chicago, Illinois
May 2, 2025
Professor Niehoff’s title is shared for identification purposes only. This is not a verbatim transcript of Professor Niehoff’s remarks but a late version of the text on which he based them. The developments discussed were current as of the morning of Friday, May 2, 2025.
Good afternoon. Thank you, Larry, for the kind introduction. And thanks to all of you for being here today.
Permit me to begin with two lawyerly disclaimers.
First, the opinions I offer are my own and not those of my law school or my law firm or anyone else.
Second, as you’ve no doubt noticed, developments regarding the rule of law have recently come at a fast and furious pace. It has sometimes resembled a game of constitutional whack-a-mole. For all I know, things have changed yet again during my walk up to this podium. My comments therefore come with no warranties of perfect currency or completeness.
I suppose that not everyone would relish the idea of speaking to a room full of people who fight and argue for a living. But it means a lot to me because I’ve been litigating cases now for more than forty years and you are my tribe. And you’ve done me the honor of asking that I address an urgently important subject: the rule of law.
There’s a lot of talk about the rule of law these days, so let me clarify that I’m going to focus on just two of the ideas that it represents. The first is the idea that everyone is accountable under the law and no one is above it. And the second is that our constitutional system depends on a strong and independent legal profession and judiciary.
To paraphrase James Madison, “if men were angels” we wouldn’t need these principles. But we’re not. So we do.
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In William Shakespeare’s play Julius Caesar, Mark Antony says that he comes to bury Caesar, not to honor him. I hope that I come today to honor the rule of law, not to bury it. We’ll see how things go. Under our current circumstances, any serious conversation about this subject can take on the semblance of a memorial service.
I’ve recently been spending a lot of time with Shakespeare. I teach a seminar on Shakespeare and the Law and I’m writing a book on the subject, to be published by the ABA. So, I’m going to call on my friend Will to serve as a sort of tour guide this afternoon as we traverse this bumpy terrain. And we’ll start with his most famous quotation about the law and lawyers. It’s one you all know.
The quotation comes in his early and relatively obscure play, Henry VI, Part 2. Here’s what happens. The Duke of York plans to seize the crown from Henry VI, but his plot goes awry when the king sends him to Ireland to put down a rebellion. To stir up things at home until he gets back, York enlists the aid of a violent and charismatic populist named Jack Cade.
Cade has behind him an army of working men, including one Dick the butcher. After Cade announces his plan to take the kingdom for himself, Dick famously calls out: “The first thing we do is, let’s kill all the lawyers.”
It’s a laugh line, but the summons has sinister implications. And although Cade’s revolution ultimately fails, he and Dick were exactly right about one thing: If you want to seize the crown, then you have to dispense with the law and the professionals who know how to mobilize it.
Given recent events, we may feel like we’re watching Jack Cade’s playbook unfold in real time. And that should concern all of us, regardless of political orientation. After all, respect for the rule of law is—or at least should be—a nonpartisan principle. People at different points along the political spectrum can reasonably disagree about many issues. But let’s stipulate that no sensible person should find themselves on the side of Dick the butcher.
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As you all know, the beginning of President Trump’s second administration brought with it a flurry of activity. A substantial part of it came in the form of executive orders—100 in his first 65 days. I think he’d entered 17 by the same point in his first administration. And all that activity resulted in a slew of lawsuits and judicial rulings.
On March 31 of this year, Professor Stephen Vladeck of Georgetown Law School released a fascinating analysis of the data available at that time. Vladeck looked at cases that had been filed asking for some form of preliminary relief “against a policy undertaken or proposed by the Trump administration since January 20, 2025.” He put aside cases involving policies that preceded that date, as well as more routine lawsuits. With that framing, he identified 67 cases in which district courts had issued a preliminary ruling.
He found that district courts granted some type of preliminary relief in 46 of those 67 cases, that is, 68.7% of the time. Given the demanding standard for obtaining such a remedy, and the delicacy inherent in asking a court to enjoin the executive branch, that’s an impressive success rate. That high rate of success led to accusations of judicial bias.
It’s hard to take those charges seriously, however, when we look at the backgrounds of the judges involved. As Vladeck points out: “[T]hose 67 rulings have come from 51 different district judges appointed by seven different presidents sitting in 14 different district courts across eight circuits.” And the 46 orders granting preliminary relief “have come from 39 different judges appointed by five different presidents and sitting in 11 different district courts across seven circuits.”
Vladeck concludes: “At some point, if this many different judges in this many different courts appointed by this many different presidents are blocking this many policies promulgated by the same president, we ought to be able to agree that the problem is the policies—not the judges.”
It’s worth emphasizing that some of the most strongly worded rulings against the administration have come from Republican-appointed judges. Some have even come from Trump-appointed judges, such as the decision of Judge Trevor McFadden that limiting Associated Press access to the White House was “a brazen violation of the First Amendment.” Or the opinion reported just yesterday from Judge Fernando Rodriguez, finding that the president has wrongfully used the Alien Enemies Act to justify deportations without due process. One opinion from a Republican appointee described the administration’s conduct as “a path of perfect lawlessness.” Not just any old lawlessness, mind you, but “perfect” lawlessness.
I should also stress that the orders and policies that these courts have enjoined haven’t involved trivial matters. To the contrary, many of them have cut to the very heart of our constitutional order, offending principles like the separation of powers, the fiscal authority of Congress, and the rights of due process and freedom of speech.
Other actions by the administration have arguably undermined the rule of law as well. Consider, for example, the president’s blanket pardon of nearly 1600 people charged in connection with the January 6, 2021, attack on the Capitol. As I understand the statistics, 38% of these individuals were charged with assaulting or impeding law enforcement officers and 174 of them received the enhanced charge of using a deadly or dangerous weapon or inflicting bodily harm.
Or consider the administration’s approach to everyday restraints on how public officials should conduct business. New Yorker editor David Remnick describes it as “a spectacle of breezy contempt regarding questions of process.” It’s the sort of thing that leads you to discover that the editor of the Atlantic has joined your secret group chat about an unfolding military operation. Treating these sorts of restrictions as annoyances hobbles the rule of law, which flourishes only in a culture of responsibility, compliance, and good faith.
Particularly concerning is this administration’s disregard for due process and the presumption of innocence. In a post on March 26, historian Heather Cox Richardson quoted an administration official who defended the deportation of individuals without criminal records on the grounds that these people are particularly dangerous because the government must lack a complete profile of their crimes. If this reasoning sounds familiar to you, that’s because it echoes our society’s earlier indulgences in scapegoating. The identical rationale was used to justify the internment of innocent Japanese-Americans during World War II and to justify the hanging of innocent women as witches in colonial Salem.
In my view, the rule of law is further undermined by claims that things are unlawful that plainly aren’t. By way of example, this happened on March 11 of this year, when President Trump described the boycott on Tesla as “illegal.” And it happened again just a few days later when he similarly declared both CNN and MSNBC “illegal” for broadcasting negative reports about him. Of course, far from being illegal, under the First Amendment all of these things—boycotts, the press, and reporting on high-level government officials—receive some of the most robust protection that the law has to offer.
Once again, Shakespeare has a lesson for us. In Henry VI, Part 2 the word “law” gets thrown around with such abandon that it finally loses its meaning. “Law” comes to signify “whatever the law would be if it served my agenda.” Shakespeare shows us that the rule of law suffers not just from its violation, its pardoned breach, and its casual disregard, but from its dilution by claims that it stands for principles that it doesn’t.
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Under our Constitution, the obligation to follow court orders is a redline for the rule of law. A president who disobeys court orders commits multiple offenses: He usurps the judicial function, tramples on the separation of powers, discards our system of checks and balances, contravenes the doctrine of judicial review established in Marbury v. Madison, and breaches the commonsense principle, noted in Walker v. City of Birmingham, that “No man can be judge in his own case.”
Vice-President Vance has quoted Andrew Jackson as approving presidential disobedience of judicial orders. It’s a quotation that gets bandied about. But it turns out Jackson didn’t actually say it and it wasn’t really about the executive disobeying a court order. If you want to know more about the background, then I commend to you the recent article published in the New York Review of Books by the distinguished Princeton historian Sean Wilentz.
Abstract legal principles don’t always fare well in popular opinion polls, but surveys consistently show that a strong majority of Americans agree that everyone—presidents included—must follow court orders. In a Reuters / Ipsos poll conducted toward the end of March, an impressive 82% of those surveyed agreed that “the president should obey federal court rulings even if he disagrees with them.” That included 68% of Republicans.
In public comments, President Trump has repeatedly acknowledged his legal obligation to follow court orders. For example, in an interview in February, he said: “I always abide by the courts.” But we all understand that “abiding” is a flexible concept.
In the past several months, serious questions have arisen in multiple cases as to whether the administration has complied with court orders. Funds appear to have remained frozen despite orders to unfreeze them. The White House appears to continue to retaliate against the Associated Press despite an order protecting its right of equal access. Are these acts of deliberate obedience? Or just bureaucratic errors and miscommunications?
Of course, the court orders that have drawn the most attention have involved injunctions against the deportations of immigrants without due process. I’m sure all of you have followed developments in the case of Kilmar Armando Abrego Garcia. But I’ll give you a quick recap of the key facts and the proceedings as I believe they currently stand.
For the past six years, Mr. Abrego Garcia has lived lawfully in this country pursuant to a judge’s determination that he should not be returned to his homeland of El Salvador because of safety risks. Despite his protected status, in March of this year federal agents seized him and put him on a plane to a Salvadoran prison infamous for its human rights violations. Multiple government officials immediately acknowledged that the deportation resulted from an administrative error.
Maryland District Court Judge Paula Xinis ordered the administration to take steps to “effectuate” Abrego Garcia’s return. This prompted White House Deputy Chief of Staff Stephen Miller to describe her as a “Marxist” judge “who thinks she’s president of El Salvador.” The government appealed to the Supreme Court, which on April 10 upheld the District Court’s order and directed the administration to “facilitate” the return of Abrego Garcia. The Supreme Court instructed Judge Xinis to clarify her order and to “show due regard to the Executive Branch in the conduct of foreign affairs,” but also told the government to keep the district court informed about its efforts to comply.
On remand, however, the administration appeared to do nothing. It invited the president of El Salvador to the White House to confirm, while sitting alongside President Trump, that Abrego Garcia wasn’t going anywhere. Judge Xinis continued to press the administration for information about its efforts to secure his return. In mid-April the administration appealed to the Fourth Circuit for relief.
The administration got instead a harsh rebuke in a brief opinion written by Reagan appointee Judge J. Harvie Wilkinson III. I commend the full order to your attention. Among other things, the order pointed out that “facilitate” is an active verb and the administration had been anything but active.
Judge Wilkinson wrote: “It is difficult in some cases to get to the very heart of the matter. But in this case, it is not hard at all. The government is asserting the right to stash away residents of this country in foreign prisons without the semblance of due process that is the foundation of our constitutional order … This should be shocking not only to judges, but to the intuitive sense of liberty that Americans far removed from courthouses still hold dear.”
Judge Wilkinson went on to note that the government had “not so subtly” spurned the district court’s order, and to caution that continued defiance would “reduce the rule of law to lawlessness …” He concluded by declaring: “We yet cling to the hope that it is not naive to believe our good brethren in the Executive Branch perceive the rule of law as vital to the American ethos. The case presents their unique chance to vindicate that value and to summon the best within us while there is still time.”
On April 23, Judge Xinis stayed her order at the request of both parties. News reports suggest that in closed hearings the government indicated it can’t secure Mr. Abrego Garcia’s return. But this gets complicated, because at the same time President Trump told ABC News that he could do so if he wanted. So, as of now, Mr. Abrego Garcia’s future remains unclear.
The Abrego Garcia case is not the only one in which controversy has arisen around a deportation. In mid-March, Chief Judge James Boasberg of the United States District Court for the District of Columbia preliminarily enjoined the government from deporting people under the 1798 Alien Enemies Act. When he learned that the planes had left for El Salvador, he ordered the government to call them back. The administration refused on the grounds that they had flown outside the court’s jurisdiction and that the judge’s order didn’t take effect until formally entered into the docket.
Secretary of State Marco Rubio’s reposted an online message of the president of El Salvador. The message read: “Oopsie … Too late.” And it featured a laughing face emoji.
The Supreme Court overturned the injunction on the narrow procedural grounds that the plaintiffs had filed the case in the wrong court. But—importantly—all nine justices agreed that migrants detained in the United States must receive advance notice and an opportunity to contest deportation before they are removed. Judge Boasberg initiated contempt proceedings to determine whether the administration had intentionally violated a court order, but the D.C. Circuit temporarily stayed them so it could review the matter. I believe that’s where things stand.
It underscores the extraordinary nature of our current situation to remember the effort the executive branch has historically expended to preserve the force and integrity of court orders. A striking example came after the 1954 desegregation ruling in Brown v. Board of Education, when President Eisenhower ordered the 101st Airborne Division to Little Rock, Arkansas, to enforce the Court’s decision, to protect the nine courageous Black students entering school that day, and to advance the constitutional values of diversity, equity, and inclusion.
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Jack Cade’s strategy included an attack not just on the rule of law but on its ministers, the members of the legal profession. Consistent with that action plan, over the past few months this administration has engaged in an assault on the independence of both lawyers and judges. It has taken multiple forms.
Now, there’s nothing new in presidents criticizing lawyers. At a 1905 Harvard alumni dinner, Teddy Roosevelt upbraided attorneys for helping wealthy clients evade the law, a speech that led to the first canons of legal ethics. And, in 1992, incumbent presidential candidate George H. W. Bush slammed his opponent, Gov. Bill Clinton, for receiving support from “every trial lawyer who ever wore a tasseled loafer.” What’s going on today, however, is completely different.
As you all know, one form of attack has come through executive orders directed at specific law firms. These orders have included a rich inventory of adjectives, such as “dishonest,” “dangerous,” “egregious,” “unethical,” “discriminatory,” and—perhaps ironically—“unlawful.” The orders make broad and breathless accusations against these law firms, who they say have done everything from making our communities less safe to limiting our constitutional freedoms.
But the orders don’t stop at hyperbolic venting over a range of grievances. They also seek to punish the firms for such mortal sins as providing pro bono services to causes this administration doesn’t like. The orders vary in their particulars, but they all threaten severe penalties, some of which—if effectuated—would pose an existential threat to the targeted firm. And they sweep broadly, for example treating all firm employees as equally suspect, culpable, and ripe for persecution. The goal of these orders seems obvious enough: First thing we do is, let’s chill all the lawyers.
As you no doubt also know, the targeted firms (and even some firms that anticipated being targeted) opted for different responsive strategies. Some struck deals. I’m not here to critique the various choices that firms have made under these challenging and unprecedented circumstances.
But a number of these law firms sued, alleging, among other things, that these executive orders violate a veritable buffet of constitutional provisions, including the Due Process Clause, the Equal Protection Clause, the speech and association clauses of the First Amendment, and the right-to-counsel clauses of the Fifth and Sixth Amendments.
These lawsuits have received support from amici curiae that now collectively number in the thousands. Full disclosure: I myself have signed on to several amicus briefs supporting these firms that were filed on behalf of law faculty from across the country. Almost 800 law professors joined the last of these, and if you don’t find that number impressive then you’ve never been in a faculty meeting and you have no idea how hard it is to get even two law professors to agree on anything.
So far, these law firms have done very well in court. To the best of my knowledge, every firm that has sought preliminary relief has received it. The government has perhaps not helped itself by the extreme nature of its defense that the president has expansive authority to make a unilateral judgment that a law firm poses a national security risk. In the Perkins Coie case, Judge Beryl Howell of the United States District Court for the District of Columbia said of this argument: “it sends little chills down my spine.”
Perhaps big chills are in order. After all, as Judge Howell suggested, the logic of the government’s argument has no natural terminus: On the same basis, the president could decide to target a firm that has done nothing but represent a targeted firm. For that matter, he could decide to target firms that send lawyers to an ABA networking luncheon in Chicago at which targeted firms and their allies are present. He could decide to target any lawyer who represents any client disfavored by the administration.
That brings me to Michigan attorney Amir Makled, who was recently detained and questioned by federal agents while returning with his family from a vacation. The agents never disclosed the reason for his detention and questioning, but we can make an educated guess at it. Mr. Makled’s current clients include one Samantha Lewis, who faces felony resisting arrest charges related to her participation in a pro-Palestinian protest on the University of Michigan campus last year. And Mr. Makled reports that agents told him they knew he was a lawyer who handled “big cases.”
Nor is an attorney insulated from attack simply because they work for this administration. At an early hearing on the deportation of Abrego Garcia, a senior Department of Justice immigration lawyer candidly acknowledged to the judge that the deportation should not have taken place and that he was frustrated with the case. The DOJ immediately put him on leave for failing to advocate zealously for his client. This is a worrisome move, because we serve under an ethical obligation of candor to the court, which we are not free to treat as acceptable collateral damage in pursuit of our client’s preferred narratives.
Of course, lawyers are not the only ones to find themselves in the crosshairs of Jack Cade’s strategy. The last few months have featured an even more aggressive assault against the judiciary.
Now, as with lawyers, presidents have sometimes had negative things to say about judges. For example, during his 2010 State of the Union address President Obama harshly criticized the Supreme Court’s decision in the Citizens United case. It made for an uncomfortable moment, given that the justices were seated right in front of him and that you could see Justice Alito mouthing the words “not true” in response. But, again, what’s going on today is completely different.
In mid-March, President Trump took to social media to call for the impeachment of Chief Judge Boasberg. Members of Congress have similarly called for the impeachment of all the judges who have ruled against the president. Because so many judges have now done so, this elevates the number of potential impeachment targets into double digits.
Earlier this year, the chatter around impeachment rose to such a fevered pitch that Chief Justice Roberts, not typically one to inject himself into a heated public debate, issued a rare statement: “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.”
Then, last Friday, a different concern emerged when ICE agents arrested Milwaukee County Judge Hannah Dugan for allegedly helping a Mexican immigrant evade capture. The Director of the FBI started the day by posting an announcement of her arrest on social media and wrapped it up by posting pictures of her perp walk. Attorney General Pam Bondi appeared on Fox News to proclaim that the arrest of this judge shows that no one is above the law.
The gratuitous FBI postings suggest, however, that this exercise has everything to do with intimidation and nothing to do with principle. Professor Charles Geyh of Indiana University has compared it to “backing the judiciary up against the wall and saying: ‘Nice court system you have here. I’d hate to see something happen to it.’”
The escalating rhetoric against judges has found its way into some unexpected settings. In the Perkins Coie case, Judge Howell denied a Justice Department motion to disqualify her that included what she described as an “ad hominem attack.” Ethical issues aside, one might wonder about the strategic wisdom of personally insulting the judge you’re trying to persuade.
This inflammatory language has had consequences, including imperiling the safety of judges. In March, the United States Marshall Service warned of a marked increase in threats against judicial officers, which have been described as surging at an “unprecedented” and “alarming rate.” In the past five years more than 1,000 serious threats have been made against federal judges, and the current environment will almost certainly make this already dangerous situation significantly worse.
ABA President Bill Bay has praised the courage of these judges for doing their jobs amidst these inexcusable—in some instances, criminal—efforts to intimidate. Let’s be honest: Right now, individual federal judges are bearing a disproportionate part of the burden of preserving the rule of law. In my view, what many of them are doing is nothing short of heroic, and we owe them our vocal support, our thanks, and our applause.
The stakes here go well beyond the outcomes in individual cases. The world has taken notice and, as a result, our country has assumed a regrettable leadership role with respect to the rule of law. In an article published on March 23, the Washington Post reported on autocrats in other countries who have publicly acknowledged that developments here have emboldened attacks on the rule of law there. We are rapidly losing, if we have not already lost, our role as the global standard-bearer for due process, human rights, and democratic values.
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At the beginning of my remarks, I asked you to consider whether I came here today to celebrate the rule of law—or to eulogize it. Maybe those aren’t the right choices. Maybe my primary purpose lies in offering you something else altogether—a sort of fourth-quarter pep talk when the score is too close for comfort and the game could still go either way.
I’ll again turn to my friend Will for help, because he wrote what is easily the greatest pep talk in the English language. It comes in his play Henry V, when the French and English troops have gathered to fight at the Battle of Agincourt. The French troops significantly outnumber the English, Henry’s men are worried, and the king knows he need to say something.
He gives them a grand and glorious speech, but also a long one, so I’ll paraphrase it. In essence, he says two things.
First, he says: Take this battle personally and recognize the place that it offers you—you—in history. Fight now and you’ll have bragging rights for the rest of your lives. You’ll have endless chances to talk about how you faced down terrible odds, about the scars you picked up in battle, and about your brave deeds—which, he adds, slyly, you can describe “with advantages.”
Second, he says this: Understand, too, that a special bond will always exist between those of us who stay and fight. It’s the unique relationship that gets formed in a foxhole. If some opt out, well, he says, “let their passport be made”; a day will come when they’ll lament the opportunity that they forever lost. But those who remain will in perpetuity share a deep connection. “We few,” he says, “we happy few, we band of brothers.” I’ll hasten to add: “and sisters.”
Sometimes we find our inspiration in Shakespeare; sometimes in baser sources. I recently took a bit of cheer from a meme I stumbled across on social media that lists funny—and allegedly true—entries that have been made in hospital records. My favorite entry in the list was this: “The patient has refused an autopsy.”
And that, my happy few, my litigious band of sisters and brothers, my friends who fight and argue for a living, brings me at long last to my conclusion and to what I really want to say to you today. Yes, the rule of law is unwell. Yes, there are powerful forces afoot that may hope to usher it into hospice care. Yes, we urgently need some emergency interventions. But hear me when I say: This patient has refused an autopsy.
To paraphrase one of Will’s lines from Measure for Measure, the law may have slept, but it is not dead. It still has fight in it. And it has a formidable band of allies. It has an ally in the American Bar Association. It has allies in the judiciary. It has allies in the halls of law firms—large, medium, and small, from biglaw to solo practitioners. It has allies in this very room. And if we let it die, then—to quote my friend Will one last time—the fault is not in our stars, but in ourselves.
My dear friends, whatever our differences, we all took an oath to uphold the Constitution. Perhaps, someday, that document will become meaningless scrap paper and we will finally lose the republic that Benjamin Franklin and his revolutionary friends gave to us; the rough and tumble of history offers no guarantees. But I hope that from this day forward we will commit to not surrendering it voluntarily. And I pray that we will make clear to anyone who wants to kill the law that they will have to come and take it from us.
Thank you for your attention.
This does not constitute legal advice and does not necessarily reflect the opinions of the ABA or the ABA Board of Governors. The reproduction, transmission, distribution, sale, publication, broadcast, circulation, or dissemination of this article is prohibited unless express written consent is separately obtained from the ABA. For reprint requests, please visit the ABA’s Reprints, Licensing & Permission page.
Attribution to this article should be as follows: Niehoff, Len. "Not Dead, Though It Hath Slept: Thoughts on the Rule of Law." (Presentation, ABA Litigation Section Annual Conference, Chicago, IL, May 2, 2025).