In November 2007, as American soldiers were still being killed daily in Iraq, Mario Cuomo received an award for outstanding public service from the Federal Bar Council in New York. At a luncheon attended by more than 1,000 lawyers and federal judges, his game still intact, Cuomo railed against the war. He demanded that lawyers and judges use their abilities to have the war declared unconstitutional—a usurpation by the executive branch of Congress’s war powers.
Seated next to a distinguished federal judge, one of us whispered somewhat jokingly: Are you prepared to declare the war unconstitutional? Respecting the constitutional mandate that judges can only decide issues presented to them in “cases or controversies,” and with a twinkle in his eye, he whispered back: “Bring me a case!”
Of course, the judge was right. He couldn’t declare the war unconstitutional, even if he wanted to, absent a pending lawsuit. But the incident presented a far more important takeaway. It reflected the duty of the legal profession to seek to correct societal wrongs if there is any hope or realistic expectation that the judicial branch can correct them. And in these turbulent, polarized, and fearful times—where the law is being impacted almost exclusively by executive branch fiat—are lawyers doing enough?
We live at a time when the Oval Office is occupied by a so-called “atypical” president—a person, for example, who appears unwilling to seriously stand up to the National Rifle Association, which has financially supported him and many Republican lawmakers. Indeed, the president’s initial response to the latest school massacre was to accuse the FBI of expending its resources trying to prove his “collusion” with Russia and consequently, failing to stop the murderous rampage. And the Republican-led Congress—many of whom have accepted substantial contributions from the NRA—has done nothing to challenge this preposterous position. So what remedy exists for a concerned public if the executive (with the president continuing to vacillate daily about guns) and legislature branches do nothing to correct critical societal problems?
To be sure, speaking out, marching, protesting, and petitioning are important. But it is the judiciary that can and often does effectuate substantive change through its interpretation of our laws. But the only way a case actually gets to court is through the work of lawyers, armed with clients, who have the courage to question and challenge. Lawyers of course cannot bring just any case—it must have plausible merit, or in legal jargon, not be “frivolous.” But with that standard in mind, it is left to the lawyers to ensure that laws are administered fairly and equally to promote justice and they must bring cases—this may be unpopular in some quarters—even if powerful precedent seems to stand in the way.
Lawyers and judges give citizens a voice, especially when Congress and our president fail to protect the nation’s health, safety and liberty. Courts have traditionally been the instrument to promote historic change—racial equality, the right to vote, tobacco, impure foods, drugs, access to health care, contraception, and numerous criminal justice reforms. But given the current barrage of rules, regulations, and executive orders, especially in areas requiring critical protections—gun violence, immigration enforcement abuses, environmental protection, electoral integrity—the role of lawyers in bringing cases challenging the government’s authority to bypass rulemaking procedures has become more imperative than ever.
Consider the government’s dismantling of environmental regulations: 33 environmental rules have been overturned, including bans against offshore drilling, new coal leases, dumping hazardous waste, and fracking, to name only a few. The Administration has rolled back regulations on health care and financial services, proudly announcing, “We are just getting started.” And lest we forget, the United States is the only country to have walked away from the Paris climate agreement. Lawyers can step into the breach and challenge, under treaty and international protocols, the government’s irresponsible actions.
We have mass shootings—244 in 2017 alone, 186 school shootings since the Sandy Hook massacre in 2012, and 18 school shootings in the first 60 days of 2018—and there is building pressure on government leaders to do something to end the carnage; yet we should expect nothing more than cosmetic changes. Absent effective legislative action, courts are the only credible venue for protecting the public. Lawsuits need to be brought against gun manufacturers and dealers; some already have, with mixed success. A suit against the NRA? Maybe. Young people are galvanized and are rising up to lead a new movement for effective gun control. Lawyers should have their backs, and band together to vindicate the right to live without fear that AK-47 and AR-15 assault weapons, the instruments used in virtually all of the mass killings, can be purchased by just about anyone, whether online or at the local gas station.
There are so many places where lawyers need to be aggressive, and creative. The work lawyers and the courts have done with travel bans has been tremendous—stopping deportations and the aggressive tactics of Immigration and Customs Enforcement agents who rush cases through, sidestep immigration procedures, and bypass courts entirely. Lawyers have, and must continue to have, an increasingly important role in protecting our elections. It is incontrovertible to everyone in our national intelligence services—the president’s disbelief notwithstanding—that Russia influenced the 2016 presidential election and is likely poised to do the same in the upcoming 2018 elections. It is left to the lawyers and the courts to ensure fairness and focus lawsuits on voter identification rules, the reliability of voting machines, disenfranchisement, to name a few. Indeed, lawsuits may be the only check to protect the 2018 election process, as well as the upcoming primaries this spring.
So with our country in turmoil, we are reminded of the late Governor Cuomo’s call to action—lawyers more than ever have to be ready and willing to challenge the new normal. There are still many judges who are just waiting—“Bring me a case.”
Joel Cohen, of counsel at a law firm in New York, is the author of Blindfolds Off: Judges on How They Decide. Bennett L. Gershman is a professor at Pace University School of Law and is the author of Prosecution Stories.