Last weekend, a real-time lesson in checks and balances was on full display when federal Judge Ann Donnelly granted a motion to stop the government from removing foreigners legally authorized to be in the country until the scope and validity of President Trump’s executive order on refugees could be adjudicated.
This dramatic turn was made possible by a commonplace activity that rarely makes the headlines — law students pulling an all-nighter.
As reported by the New Haven Independent, after a professor at Yale received a call for help at 10 p.m. on Friday — a mere five hours after the executive order was signed — he set his students to work on a habeas corpus petition seeking relief for individuals who had been detained at airports around the country. The petition was argued on Saturday at 7:30 p.m. and granted 90 minutes later.
That a handful of supervising attorneys and law students could, in less than 24 hours, bring to at least a temporary halt the enforcement of a signature initiative of the president should not be surprising. The rule of law was built for such moments. Thankfully, the rule of law is not partisan.
When past presidents overreached their constitutional mandates, lawyers have been there to provide a necessary, if not always popular, reminder. Sometimes their work transforms our political culture (e.g., invalidating the worst excesses of the Nixon administration during Watergate), and sometimes the work ensures a close and careful adherence to seemingly mundane but important aspects of our constitutional framework (e.g., invalidating President Barack Obama’s recess appointments made when the Senate was not truly in recess).
And while last weekend’s case garnered more headlines than most cases taken on by law students, it is par for the course in terms of the service law students provide. At St. Thomas, our law students advocate for the release of nonviolent drug offenders who received prison sentences now widely acknowledged as exceptionally harsh. Over the course of the Obama administration, the students won clemency for nine prisoners, and our alumni went on to help win clemency for 96 more.
Our students work on behalf of the poor in 11 different legal clinics. St. Thomas is not unique in this regard — the law schools at Mitchell-Hamline and the University of Minnesota also provide opportunities for students to contribute to the rule of law, especially as applied to those who otherwise would lack meaningful access to justice.
Hands-on advocacy is an effective means of teaching the skills necessary for legal practice, to be sure. But our commitment to this work goes deeper than a desire to impart skills. By asking our students to represent real clients in real situations of distress and disorder, we are orienting them toward a core value of our profession that spans generations: vindicating our nation’s promise that we all stand equal before the law.
America’s commitment to that promise has ebbed and flowed over the course of our history, but at the high points lawyers are never far from the action.
Lawyer jokes come easily, and it’s understandable. One person’s champion is another person’s road block. We ask the questions no one wants to answer, point out the flaw in the best-laid plans, and redirect everyone’s gaze to the person pushed to the margins. Our successes do not always translate easily into cost-benefit terms. And yes, there are unscrupulous lawyers, given that we — contrary to rumor — are human beings like everyone else.
But in the end, Americans like to poke fun at lawyers only until they need one. Few of us will ever sue the president of the United States. Much of our work takes place in a small office, a crowded courtroom, or across the table from a client who may be feeling scared, hopeless, and invisible. If we take the rule of law seriously, we must be cognizant not only of an overreaching executive branch, but of an overreaching landlord, employer, business partner, or prosecutor.
Lawyers, at their best, help remedy disparities before the law. Those disparities can stem from imbalances in political power, social standing, financial resources, or information. At a time in U.S. history when we cannot seem to agree on much, committing to a level playing field before the law may be a great place to start.
Robert K. Vischer is dean of the University of St. Thomas School of Law.