“The first thing we do is, let’s kill all the lawyers.” (Henry VI, Dick the Butcher in Act IV, Scene II.) Supreme Court Justice John Paul Stevens referred to this quote in a 1985 decision as follows: “As a careful reading of that text will reveal, Shakespeare insightfully realized that disposing of lawyers is a step in the direction of a totalitarian form of government.” Shakespeare depicted lawyers as the fundamental defenders against the grossest manifestations of power-hungry antics wrought by certain of humanity’s leaders.
On March 11, 2025, The New York Times published interviews by Francesca Triamni with seven government watchdogs who have been fired by the new administration. All “expressed deep concern about the chilling effect their firings will have on their staffs and the larger watchdog community.” When SBA Inspector General Mike Ware “first heard about President Trump’s and Elon Musk’s big push to improve government efficiency, he thought! ‘This is not a bad thing at all. After all, that’s what inspectors general do: root out waste and abuse within the machinery of the federal government!’”
Yet, “he was summarily fired a few days later . . . along with 15 of his colleagues, inspectors general at agencies with some of the government’s largest budgets, including the Departments of Agriculture, Defense, Education, Energy, Health and Human Services and Veterans Affairs.” As Ware asked, “Who’s going to be brave enough to speak truth to power if speaking truth to power means you get fired the next day.”
In 2009, President Obama fired Gerald Walpin, the Inspector General for the Corporation for National and Community Service. A bipartisan group of 145 current and former public officials, U.S. attorneys, and legal scholars protested, arguing that the removal was politically motivated. They stated that Walpin was an effective watchdog who blew the whistle on the president’s friends and pet causes. After the White House cured deficiencies in the termination by complying with the required 30-day notice provision, Walpin lost his case in court.
However, in 2025, there is no public evidence that (a) the president complied with legal requirements in firing the watchdogs, and (b) most importantly, that he has replaced the 16 with newly appointed independent watchdogs. The 16 posts appear vacant.
In naming John Roberts and Harriet Miers as candidates for Supreme Court appointment, President Bush endorsed each of them as individuals who would adhere to the “rule of law” in carrying out their duties. At a November 2005 ABCNY symposium, Justice Kennedy defined the rule of law as comprised of these three points: “(1) The government must be bound by the law, (2) the law must treat all persons in an equal manner, and (3) the law must recognize within each person a core of spirituality and dignity in humanity.”
In 1803, Justice Marshall, in Marbury v. Madison, wrote that, “The government of the United States has been emphatically termed a government of laws, and not of men.” Justice Marshall’s words “a government of law and not of men,” represent what most of us understand to be the rule of law, and Justice Kennedy’s as what most of us would expect from the rule of law.
As reported in James Grant’s 2005 biography – John Adams, Party of One – Aristotle originated the phrase of “a rule of law and not of men.” John Adams picked up the phrase in 1779 from James Harrington’s book “Commonwealth of Oceana,” published in the 16th century, while Adams was drafting the Massachusetts constitution – a source document for drafting the U.S. Constitution. Justice Scalia quoted Aristotle as follows in an article on the rule of law:
Rightly constituted laws should be the final sovereign and personal rule, whether it be exercised by a single person or body of persons, should be sovereign, only in those matters on which law is unable, owing to the difficulty of framing general rules for all contingencies to make an exact pronouncement.
Adams used the phrase “a rule of law and not of men” in the pamphlet he wrote to accompany his 1779 draft of the Massachusetts constitution. He had read a lot of Plato and was a strong believer in the separation of powers since he distrusted majority rule. Adams’ take on the rule of law found its way into the U.S. Constitution.
In a 1997 Columbia Law Review article, Harvard Law Professor Richard Fallon, Jr. set forth both his conception of and the purposes of the rule of law as follows:
First, the Rule of Law shall protect against anarchy. . . .
Second, the Rule of Law should allow people to plan their affairs with reasonable confidence that they can know in advance the legal consequences of various actions.
Third, the Rule of Law should guarantee against at least some types of official arbitrariness.
Professor Fallon also recited the following five elements which – if present – meet the test for realization of the rule of law:
(1) The first element is the capacity of legal rules, standards, or principles to guide people in the conduct of their affairs. People must be able to understand the law and comply with it.
(2) The second element of the Rule of Law is efficacy. The law should actually guide people, at least for the most part. In Joseph Raz’s phrase, “People should be ruled by the law and obey it.”
(3) The third element is stability. The law should be reasonably stable, in order to facilitate planning and coordinated action over time.
(4) The 4th element of the Rule of Law is the supremacy of legal authority. The law should rule officials, including judges, as well as ordinary citizens.
(5) The final element involves instrumentalities of impartial justice. Courts should be able to enforce the law and should employ fair procedures.
There are opinions to the contrary. The tyrannical Roman emperor Ulpian stated, “[T]hat which pleases the Prince has the force of law.” The philosopher Hobbs stated that, “All laws . . . have their authority and force from the will of sovereign. No law can be unjust then, for the law is made by the sovereign power and all that is done by such a power is warranted.” As was stated by Justice Holmes:
What constitutes the law? You will find some writers telling you that it is a system of reason, that is a deduction from the principles of ethics or whatnot, but if we take the view of our friend the bad man, we shall find that he does not care two straws for axioms of deduction. All he wants to know is what the courts are likely to do in fact. Not merely for the bad man, the prophecies of what the courts will do in fact, and nothing more pretentious are what I mean by the rule of law.
In a 1995 symposium at the Brooklyn Law School, the panelists explored the issues arising out of the relationship between law and morality in a World War II era context. It was agreed that lawyers and judges in Nazi Germany and Vichy, France, were “compliant with evil law.” Even in the earlier Weimar Republic, the German judges found a way to back Hitler and his supporters in a “Rule by Law” administration.
In Vichy, France, the judges, and the lawyers as well, were compliant with unjust laws discriminating against Jews without finding ways to oppose them on grounds of morality or human decency. Some 75,000 Jews living in France were sent to die in extermination camps, often as a result of proceedings held in the courts. Yet Italian lawyers ignored the same laws under Mussolini, and, in Belgium, the lawyers and judges effectively protested the Nazi laws. In Denmark, the general population resisted the laws and 7,300 out of 7,800 Jews survived. Courts, thus, must perform the often-difficult task of distinguishing between just and unjust laws.
Federal Judge Jack Weinstein, who participated in the Brooklyn Law symposium, stated that judges faced with immoral laws “can ignore neither monstrous nor routine injustices . . . of the various opinions available to American judges when faced with an immoral law, only one was ruled out, silent acquiescence.” Among options discussed at the symposium were resignation and “deliberately risking reversal.” Federal Judge James Roberston resigned from the U.S. FISA Court in protest over his perception that the government had committed misconduct by wiretapping American citizens without securing an order permitting it from his court.
In 1995, Judge Robert Katzmann, in The Law Firm and the Public Good, emphasized that lawyers are not “grocers” or “taxi cab drivers,” but because of our licenses from the state – we must – as one of our “role morality” duties – “ensure justice.” The rule of law is our safeguard that justice will be done. Justice O’Conner hailed the highest court in Ukraine for its judicial intelligence and courage in holding five days of televised hearings on the claims of a fraudulently conducted election – determining thereafter to overturn the election and schedule a new one. Corruption may have undermined the administration of a rule of law democracy, but Ukraine’s high court judges were able in render a rule of law based decision. Ukraine, now, even in wartime, is in the process of installing new institutions and guardrails to protect the rule of law.
Justice Kennedy at the November 2005 ABCNY symposium stated that “we never recognize injustice in our own time.” Do not we lawyers all have a “role morality” to now speak up for the benefit of society? At the same symposium, Chief Justice Roberts proclaimed “our concept of an independent judiciary as our most important contribution to the rule of law jurisprudence and which has been almost universally adopted especially by emerging democracies since the beginning of the Second World War.”