The Rule of Law: Fact or Fiction? Inns of Court and The Federalist Society

When I began this piece, I wasn’t sure how much could be reasonably presented in a concise statement of the nature of the problem: is the rule of law fact or fiction?

For sure, America prides itself as a nation that lives by “the rule of law.” Law exist everywhere: statutes, ordinances, and judicial decisions. If there's a problem with the “rule of law,” the problem must arise where laws are made. Right?

Since most, if not all, forms of American government (local, state, and national) reflect a “divisions of power,” legislatures must be the source of the problem. But that's not the case. Legislatures merely reflect the biases of the generation in power. Rarely are the laws of a previous generation abrogated to make way for the laws of the new generation. Often, opposing principles are left standing without regard for the contradiction.

Where else then? The courts?

For sure, whoever controls the courts will control the interpretation of the law. But, legal hermeneutics originates elsewhere. It starts long before the appointment or election of judges. It begins with lawyers. Then it must be in our law schools. Wrong! Law schools rarely, if ever, educate in legal theory. No, it takes place in think tanks that, for the most part, go unnoticed because they're obscure. Let’s look at two.

Inns of Court

The Inns of Court began in England as a professional association to one of which every English barrister must belong. The English Inns of Court have supervisory and disciplinary functions over their members. Beginning in the late 1970s, U.S. Chief Justice Warren Burger led a movement to create U.S. Inns of Court. Burger, a Republican, was an Eisenhower appointee to the U.S. Supreme Court and an elitist.

Today, U.S. Inns of Court flourish. In many instances U.S. Inns of Court have denigrated into a place where judges and lawyers forge friendships that often reflect an underlying bias against “the rule of law.” It's the place where the young lawyer and would-be judge learns how to "think." There are literally dozens of such U.S. Inns of Court where membership is by invitation only.

The Federalist Society

The Federalist Society for Law and Public Policy Studies was founded in the early 1980s as a "conservative legal fellowship" attempting to mold judicial practice in the U.S. Notable members of The Federalist Society are Robert H. Bork, Orrin G. Hatch, Donald Paul Hodel, Edwin Meese, John Stewart Bryan,III, Chairman, President/C.E.O. Media General Cable, Joseph Cannon, C.E.O./Chairman, Geneva Steel, R. Crosby Kemper, III, President, United Missouri Bank, John G. Medlin, Jr., Chairman, Wachovia Corporation, Nicholas John Stathis, Vice President, Orpheon, Inc., Paul S. Stevens, General Counsel, Investment Company Institute, Robert L. Strickland, Chairman, Lowe's Companies, Inc., Kenneth Starr, U.S. Chief Justice John G. Roberts, Jr. The purpose of The Federalist Society is to proselytize, indoctrinate, and groom lawyers to become judges who “think right.”