What Is the Rule of Law?
My remarks for the Law Day convening of the Los Angeles County Bar Association
With voting rights and the rule of law under attack in the United States, I was honored that Jeffrey Margulies, President of the LA County Bar Association, invited me to share remarks at today’s special Law Day convening. I am happy to share them here.
Thank you Jeff.
Thanks to everyone who is joining.
It’s an honor to be here, speaking alongside you as the leader of the LA County Bar Association and two judges I greatly admire: The Honorable Dolly Gee, Chief Judge of the United States District Court for the Central District of California and the Honorable Sergio Tapia, Presiding Judge of LA Superior Court.
Today is Law Day.
I will admit that although Law Day started in 1958, until last year, I had never heard of it.
I guess I assumed every day was Law Day. Perhaps I took the rule of law for granted.
On Wednesday, the Supreme Court “eviscerated” Section 2 of the Voting Rights Act. That’s how Justice Kagan’s dissent described the decision in Louisiana v. Callais.
I do a lot of work with high school students, so I like to speak in plain terms. Eviscerated means the Court cut the heart out of the landmark voting rights legislation that has stood for 60 years to protect the rights of minority voters against discrimination. And to ensure that every voter will have an equal opportunity to participate in the political process and elect candidates of their choice.
Section 2 is, or was, foundational legislation for our multiracial democracy. It codified rights for which courageous Americans organized, in the face of violence and terror, to help our country live up to its promise of We the People.
In its 2013 decision in Shelby County, the Supreme Court invalidated the preclearance requirement of the Voting Rights Act. Justice Ginsburg said in dissent that “throwing out preclearance when it has worked and is continuing to work is … like throwing away your umbrella in a rainstorm because you’re not getting wet.”
I have been imagining what she might have said about Callais. The rainstorm now might be an earthquake. The thing thrown away would be more than an umbrella. It feels more like firm ground beneath our feet.
It’s our shared understanding of the meaning of progress, ideals like equality and dignity, and the rule of law itself.
I am on a few listservs with leaders of civil rights and voting rights organizations. Since the decision, the statements have been coming. This condemnation and that. The themes I just mentioned.
And two more.
Voting itself as an intervention in support of the rule of law. And Organizing. Those are powers we have.
Ultimately, law comes from power, and power comes from people. So if the courts will not protect us, what else can we do but use the powers that we have?
Earlier this year, I attended a conference in Washington DC, full of lawyers. I began chatting with the kind gentleman next to me, who turned out to be a Georgetown professor and an expert on democracy in Latin America. His name was Michael Shifter and he was speaking at a session about civil society and democratic backsliding.
The Civics Center, which is the organization that I founded and lead, has a mission to make voter registration part of high school life.
You can imagine how excited I was to meet him!
He confessed that he did not have much to say about high school voter registration in Guatemala or Brazil, but he managed to redeem himself, and his remarks at that session have stuck with me.
He talked about Chile during the Pinochet years, when the government’s political opponents were disappeared, tortured, and killed, And the courts: they stopped hearing habeas corpus petitions.
It wasn’t just one or two, but 10,000, denied, denied, denied.
And the question was, what can civil society do? What can lawyers do in such a case?
In Chile, the answer human rights lawyers came up with was to keep taking testimony and preparing habeas corpus petitions, anyway.
Courts might not be working right now. But one day, they believed, the rule of law would be restored, an independent judiciary would return, a truth and reconciliation commission might emerge, and the evidence would be there. The testimony of witnesses would be preserved, and the truth would still have power.
And for the lawyers, perhaps, their own insistence on recognizing the dignity of the victims and their families and articulating the legal and moral standards that ought to govern in such cases, would play a role in creating the conditions for all of this to unfold.
My grandfather was an immigrant, and so were his parents.
I have been researching family history, and earlier this week, I downloaded documents sent by the city archives of Erlangen, the city in Bavaria where my grandfather and his parents had lived.
There were photos and arrest records of my great grandparents, Heinrich and Kathi. Both were taken into custody, along with other Jews, during Kristallnacht and then held for days: at the Town Hall, at a mill building, or in prison.
There was a photo of their house.
And a summary of two rounds of testimony taken 10 years later from an officer of the SA who was involved. SA means the Nazi paramilitary force–the Brownshirts. The officer’s name was Oskar Hahn. He described the night he and others took away the “elderly Brill couple.”
“At the house on Neustädter Kirchenplatz the policeman made a noise, and a woman who looked down from the window threw down the house key. We then went through the gate to the rear building where the Brüll family lived on the ground floor. The policeman ordered the Brüll family to get dressed and come to the Town Hall. We two SA men and the policeman stayed outside until finally the Brülls came down. On the policeman’s instructions, they had to lock the apartment and were led away by the policeman and SA comrade Meier.”
The second time, Hahn testified, it was much the same: “When we arrived there, Seeberger [the policeman] knocked on the house door. A woman answered from above. She threw down the house key. The woman led us to the apartment. There Seeberger said they should get dressed and come to the station. Then the people got dressed.”
My great grandmother Kathi, in the front with hat and scarf
My great grandfather, Heinrich, between the two men in front
I want to say first, that my relatives–the elderly Brill couple–they survived. They made their way to Hamburg and then New York.
I am struck by the neighbor with the key. She threw down the house key. The policeman made a noise, and she let them in.
Who was she? Was she eager or was she scared? I expect Heinrich and Kathi were terrified. I want to believe the neighbor with the key was scared, too.
But even so…
We have a family group chat, and I asked my kids:
Imagine you are the neighbor, and imagine you are scared.
Do you throw down the key?
And does it matter whether you feel you are alone?
We all have keys of one kind or another and the capacity to choose how to use them.
The legal profession has many keys and a great deal of power.
And sometimes, too, a lot to fear.
But lawyers and law firms: we also have choices.
Some are big, and some are small. Either way, they have consequences. Consequences for ourselves, our families, our communities, and beyond.
One of the biggest questions is the one I asked my kids: When we hear a noise, will we throw down the key?
Law Day invites us to answer still more questions, and I hope we can consider them, not just today, but every day:
How can we work together?
How can we protect one another?
How can we protect the rule of law?
And how can we – and I mean each of us, all of us – create the conditions so we will not be afraid?