Hoos Defending Democracy: How Two UVA Alums Advocate for the Rule of Law

Barbara A. Perry is J. Wilson Newman Professor of Governance and Co-Chair of the Presidential Oral History Program at UVA’s Miller Center. She serves on the boards of the White House Historical Association, the Supreme Court Historical Society, the John F. Kennedy Presidential Library Foundation, and the Friends of the John F. Kennedy National Historic Site. Perry was the Judicial Fellow at the U.S. Supreme Court in 1994-95. 

How fortunate I was to choose UVA over Harvard to study for my Ph.D. in American government and doubly lucky that Professor Henry J. Abraham, world-renowned scholar of the Supreme Court and Constitution, took me under his wing as a protégée. Recently, a researcher shared with me a 1987 letter Henry wrote to Justice Antonin Scalia. At the missive’s conclusion, Henry thanked the justice for granting an interview to “Professor Barbara Perry,” “one of my prize Ph.D.s.” Although having passed at age 98 in 2020, my prize professor spoke from the Great Beyond, filling me with appreciation.

The other good fortune of collaborating with Professor Abraham was his introduction to me of his friend and colleague, Judge J. Harvie Wilkinson III. After Henry’s demise “Judge Jay,” his lovely wife, and I have become dining companions, and we enjoy discussing topics from UVA sports teams to cowboy heroes to literature to American judicial history.

A part of that history will be Judge Wilkinson’s recent opinion for the 4th Circuit U.S. Court of Appeals in Kilmar Abrego Garcia’s case. The Salvadoran has become a cause célèbre for those who oppose the Trump administration’s policy of snatching immigrants off American streets and, without hearings, shipping them to notorious foreign prisons, which the U.S. pays to incarcerate the deportees.

A UVA Law School graduate, Judge Wilkinson served as Justice Lewis F. Powell’s first law clerk, after which he returned to Charlottesville to become a professor of law.  Appointed by President Ronald Reagan to the 4th Circuit in 1984, he became its chief judge, was a finalist for a Supreme Court seat during George W. Bush’s presidency, and now is the longest-serving jurist in the circuit’s 134-year history.

The author of compelling memoirs about his tenure with fellow Virginian Justice Powell and his own life across seven decades, Judge Wilkinson has also penned celebrated books on Senator Harry Byrd (D-VA), school desegregation, affirmative action, and constitutional interpretation. He even published a romantic novel, Love at Deep Dusk, about a female protagonist who struggles in her search for forgiveness toward a lost paramour.

The UVA Law alumnus has added to this sterling legacy by his steadfast defense of our democratic-republic in his Garcia opinion. Yes, the executive branch, led by the president, has the power of deportation, Wilkinson wrote, but not before individuals are afforded their constitutional right to due process administered by the judicial branch. This fundamental argument flows from the Founders’ principles of separated powers and checks and balances among our tripartite government. Yet these very foundations of our constitutional structure are under assault from unilateral executive actions, as in the case of Abrego Garcia.

Judge Wilkinson’s opinion asserts that “[t]he basic differences between the branches mandate a serious effort at mutual respect. The respect that courts must accord the executive must be reciprocated by the executive's respect for the courts. Too often today this has not been the case, as calls for impeachment of judges for decisions the executive disfavors and exhortations to disregard court orders sadly illustrate.”

A quarter-century ago, Professor Abraham’s students, colleagues, family, and friends endowed a distinguished lectureship in his honor. Because of Henry’s wide network of admirers and acolytes, we have hosted at UVA Law School and the Miller Center Chief Justice William Rehnquist, Justice Scalia, Justice Stephen Breyer, Judge Wilkinson, Attorney General Michael Mukasey, Chief Justice Leroy Hassell, General William Suter, Dean John Jeffries, Ambassador Thomas Pickering, Kathleen Kennedy Townsend, and Linda Greenhouse, among others.

In 2023, a Miller Center colleague suggested that we invite former 4th Circuit Judge J. Michael Luttig to deliver the Abraham Lecture. Like Wilkinson, his one-time colleague on the appellate court, Luttig received his law degree from UVA, served as a Supreme Court clerk (for Chief Justice Warren Burger), was appointed to the bench by a Republican president (George H.W. Bush), was considered for the Supreme Court by George W. Bush, and has lectured at UVA Law School.

Also like Wilkinson, Luttig has secured his place in history as a staunch defender of American democracy and the Constitution that created our regime as a model for the free world. Even before his courageous testimony to Congress’s January 6th investigatory committee, in which he castigated the 2021 Trump-inspired insurrection that attempted to block the certification of Joe Biden’s Electoral College victory, Luttig had declaimed against the 45th president’s unconstitutional actions, spread of disinformation, uncivil diatribes, and election denial. All have led to a loss of faith in governmental institutions and those who serve in them, Luttig argues.

In a second nonconsecutive term, the 47th president has undertaken even more extreme measures beyond the bounds of our constitutional structure. These actions have not dissuaded Luttig from speaking truth to abusive executive power. As he recently wrote in The Atlantic, “The president of the United States appears to have long ago forgotten that Americans fought the Revolutionary War not merely to secure their independence from the British monarchy but to establish a government of laws, not of men, so that they and future generations of Americans would never again be subject to the whims of a tyrannical king.”

One can imagine that President James Madison, UVA’s second rector and “Father of the Constitution,” would admire these two distinguished University alumni who are fighting to preserve judicial independence, rule of law, civil liberties, and, thus, American democracy.