A Conversation With Laurie Levenson

Laurie Levenson is a professor of law who holds the David W. Burcham Chair in Ethical Advocacy at the LMU Loyola Law School. A former federal prosecutor, she is the founding director of the Loyola Project for the Innocent, the Loyola Center for Ethical Advocacy, and the Fidler Institute on Criminal Justice. We spoke to her about the state of courts in the United States. Levenson was interviewed by Editor Joseph Wakelee-Lynch.

Hyperpolarization now seems to be the normal state of U.S. politics. Does hyperpolarization also characterize the state of our court system?

It characterizes the issues that are before the courts and often the litigants. The court system has to deal with the hyperpolarization of our society.

President Donald Trump has issued an unusually large number of executive orders, and many of them have been contested in the courts. Are the courts busier with these questions simply because there are so many executive orders, or is it because so many of the executive orders are constitutionally questionable?

Both. We have close to 200 lawsuits that have been filed against the president’s executive orders. It’s not just that these are individual matters. They have enormous significance. So, the courts are very busy because not only are there a lot of them but they’re very, very important cases.

Many observers of the U.S. political system argue that we’re not currently in a constitutional crisis. Could that crisis come over a small procedural matter rather than a major Supreme Court decision?

We are, but I suppose it depends on how you define it. If we’re not there yet, we are inches away. It could come because the litigants are told to facilitate an individual’s return, and they say, “Well, we just think ‘facilitate’ refers to giving them a ride to the courthouse if they’re able to get out of the other country and make it here.” These are all procedural matters, but procedure matters a lot. That’s what due process is based upon.

LMU Loyola Law School trains future lawyers and jurists. Has education in the law changed in the past 10 years or so compared to your time in school due to the state of the nation’s politics?

I do think the pendulum sometimes swings. But it’s at an extreme point right now. Indeed, my students are facing issues that we haven’t seen before, let alone long ago. It’s not just that there are big legal issues, but these issues affect them or their families directly: immigration, so-called national security, freedom of speech, freedom of association, freedom of religion.

The Attorney General in April used the word “deranged” about judges when commenting after the arrest of Wisconsin Judge Hannah Dugan. Your thoughts?

It’s most unfortunate that you see this type of rhetoric from this administration. That is contrary to what I’ve been teaching as a law professor: that we can have respectful disagreement. But that is not what’s being modeled by our current Justice Department. It is not respectful disagreement: the name-calling, the exaggeration, the outlandish attacks. As a former federal prosecutor, I see no reason why they couldn’t have investigated that matter. If a grand jury thinks she should be indicted, they know how to do that. This is not hyperbole: For students in law school, it is so difficult, because we teach them the rule of law. Yet what we see happening does not match that description very much.

Do you feel there is a heightened sense of responsibility among those in the judicial system to defend the integrity of the judicial branch within the U.S. constitutional framework?

Absolutely. It does seem like there are attacks on all branches of the courts. We have Department of Justice officials saying, “You can’t tell us what to do.” We teach our students to respect judges’ decisions, to respect the rule of law. There are so many aspects of our justice system that do seem threatened by current matters that I think students appreciate that their legal education isn’t just about passing the bar. It’s really about looking at what’s important in our democracy and seeing what their role will be in defending that.