Lawyers and the Rule of Law: America at 250 and Beyond

The rule of law is often invoked in both politics and law as foundational to the United States; as what makes America’s system of government unique; as threatened and abandoned; as championed and reclaimed.

While clearly an important principle, the rule of law can often feel abstract to both non-lawyers and lawyers alike. So, coinciding with America’s 250th birthday, Super Lawyers asked attorneys at the front lines of legal battles over the rule of law and civil liberties what the rule of law means and why it matters today.

Why the Rule of Law Matters to Lawyers — And Everyone in the US

At its core, the rule of law reflects Americans’ belief that all people, including the president, are subject to the laws of the land.

“Contrast that to a dictatorship, where leaders make laws that apply only to others,” says Kenzo Kawanabe, partner at Olson Grimsley Kawanabe Hinchcliff & Murray in Denver, Colorado, and member of the Super Lawyers Advisory Board. “Many of our ancestors fled such countries to have the foundational fairness provided by the rule of law.”

Essential to the rule of law are “equality of persons before the law and the protection of our fundamental rights,” says Anna M. Barvir, a civil rights lawyer at Michel & Associates in Long Beach, California, whose practice includes First, Second, and 14th Amendment litigation.

Without these rule-of-law protections, there could be no “American Dream,” the ideal that everyone should be able to achieve prosperity and happiness regardless of how or where they start.

“If you don’t have a system of laws that protects everybody equally, then it’s not really a system of law. It’s a system of popularity, money, and corruption where only the popular, wealthy, and corrupt are protected,” says Jeffrey Lewis, a civil rights and free speech lawyer at Jeff Lewis Law in Rolling Hills Estates, California. “So, the rule of law is essential to our country, our democracy, and our way of living.”

The rule of law is a mix of present reality and ideals. “Somewhere in my childhood, it was instilled in me that the world should be fair, and that everybody should have an equal chance at opportunities,” says Laura E. Landenwich, a civil rights lawyer at Adams Landenwich Lay in Louisville, Kentucky. 

“I believed that merit-based achievement was the ideal. And I still believe that. I just learned that not everybody is playing the same game.”

Lawyers as a Check and Balance on Government Power

The rule of law is more of a process to enact than a reality that simply exists regardless of what people do. It isn’t inherently guaranteed, but has to be achieved. When a law is passed, it doesn’t enforce itself or automatically hold officials accountable.

For that, you need people actively upholding the law, and checks and balances on the use of power. And while checks and balances between the branches of government are well known, Barvir highlights another check that comes from outside the government: Attorneys working in the legal system, constantly challenging unconstitutional laws and government overreach.

“Attorneys are vitally important to ensuring we’re holding our government accountable to the rule of law,” says Barvir. “Without the check that attorneys bring through litigation, we can see the rule of law start to dissolve.”

In fact, as the balance of powers within government has shifted, the role of lawyers and courts has become more pronounced. “Congress has essentially been neutered as the executive assumes more and more power and defiance,” says Paula Greisen, a civil rights lawyer at Greisen Law in Denver, Colorado.

The Role of Lawyers and Courts in Upholding the Rule of Law

The concern about legal backsliding isn’t limited to government, adds Greisen. When elected officials defy the rule of law, that attitude trickles down. It can embolden those in the private sector to think it’s no longer important what the courts rule — that the rule will be what they want.

“The question now is whether the courts will hold the line or buckle, too,” says Greisen. “And that’s where attorneys come in. I don’t know that there’s ever been a time in history more important for the judicial branch, the legal prong of our democracy, to hold steadfast.”

What Greisen calls the firehose of news around executive orders and government actions can make it feel as though laws and norms are changing with no resistance or oversight. But the timeframe for legal issues to work their way through the courts is longer than the news cycle, and that lag time is actually a good thing, says Landenwich.

“So far, the judicial system has done a commendable job of trying to rein in the executive excess we’re seeing all over the news. What we actually want are courts that sit back and really contemplate the nuances of a particular legal issue before giving a ruling that litigators and policymakers can look to for guidance,” Landenwich says.

Upholding the Rule of Law at All Levels 

We often talk about the rule of law in the context of national politics. But lawyers have a role in upholding the rule of law and civil liberties at all levels of government.

“I think back to when I was sworn in as a lawyer,” says Kawanabe. “My oath included the phrase, ‘I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed.’ I believe that, as a lawyer, I’m obligated to fulfill that oath by donating my time and treasure to support the rule of law.”

Rule of Law at the Local Level: Access to Justice and Civic Involvement

On a local level, Kawanabe serves on the board of Colorado Legal Services, the state’s largest pro bono organization providing free legal services to those in need. These services include family law, eviction defense, consumer protection, and services to survivors of serious crime, including human trafficking.

Many attorneys engage in community-level pro bono work to expand access to legal services and are active members of civic organizations. For example, Barvir, in addition to her high-profile litigation of First and Second Amendment cases involving government surveillance and the right to bear arms in California, has served on the Orange County Equality Coalition’s Board of Directors and was Founding President of Orange County Pride.

Securing Statewide Rulings on the Rule of Law and Civil Rights

On a statewide basis, Kawanabe’s firm partnered with organizations like the ACLU of Colorado to represent four immigrants and to stop warrantless arrests by U.S. Immigration and Customs Enforcement (ICE). Following a two-day preliminary injunction hearing, a federal judge ordered ICE to stop.

Greisen was also legal counsel on a case in Colorado with state and national implications. She represented families against Children’s Hospital Colorado, which stopped providing gender-affirming medical care to transgender youth in fear of federal retaliation and loss of funding.

“Luckily, I had a state supreme court that told the children’s hospital, ‘Sorry, you might lose money, but you can’t discriminate.’” State law and civil rights were upheld.

National Cases Upholding the Rule of Law

Cases that start local can become nationally significant. For example, Landenwich represented plaintiffs against Kentucky’s ban on recognizing same-sex marriages. The case arose in Kentucky, went through the Sixth Circuit Court of Appeals, and was consolidated with Obergefell v. Hodges before the U.S. Supreme Court. The Court’s decision in Obergefell ultimately established the constitutional right to marriage equality nationwide.

Recently, the very rule-of-law work that lawyers do has been at issue in legal cases. “At the national level, my firm helped represent an organization with over 850 Big Law partners, which retained us to file amicus briefs challenging the Trump administration’s executive orders targeting certain law firms,” says Kawanabe. “Courts have struck down these executive orders as unconstitutional.”

Whatever level lawyers work at, they help clients first and foremost, but the rulings they secure help others in future cases. Lewis, who represents defendants in anti-SLAPP lawsuits, says that upholding the rule of law sometimes means representing people with unpopular positions. “Maybe they’re not somebody I’d want to have a drink with, but protecting their right to speech upholds everyone’s civil liberties.”

America at 250 and Beyond: The Rule of Law at a Significant Milestone

For many, observance of America’s 250th birthday brings bittersweet feelings. There’s celebration mixed with concern. “Especially in the civil rights field, I have a lot of concerns about the direction that the country is heading, particularly as driven by the current U.S. Supreme Court,” says Landenwich.

However, when discouraged about the state of civil liberties and the rule of law, Landenwich remembers to put the present in the context of those 250 years.

“The system of government and rule of law we’ve established has always fallen short for certain people and has never operated perfectly,” she says. “But the overarching path we’ve taken is toward a more equal application of the law and greater justice. I don’t think we’re necessarily off that course just because we’re in a bit of a backslide currently.”

When asked what the Founders would be most proud of at the 250th birthday of the United States, Barvir imagines they’d be proud that the country and legal system they created has endured so long.

But what has made that system of government endure — and get closer to the originary ideals of democracy and equality — is the work of all the generations since its founding. So, Barvir thinks it’s important what the Founders would think, but even more important what those of us in the present think and do. “As to the most unfulfilled promise, I think it has very much to do with equality before the law.”

The practical upshot for citizens and lawyers today, as Greisen says, is “that there are many new civil rights frontiers. We need to rev up!”