“When economists find that they are unable to analyze what is happening in the real world, they invent an imaginary world which they are capable of handling.” Nobel law and economics scholar Ronald Coase, University of Chicago Law
Two law professors from the University of Chicago and UCLA, respectively, recently wrote a fascinating essay in the Chronicle of Higher Education (“Law Schools Have a Supreme Court Problem: They flattered the Court’s power. Now they’re caught in its rightward tilt,” Aziz Z. Huq and Jon D. Michaels, July 18, 2022). They argue that, because the Supreme Court is currently a small conservative majority, it is hurting the prestige of their law schools and effectively ‘tarring’ their reputation: “law schools must grapple with the question of what counts as prestige when a very different Supreme Court espouses views that track a particularly extreme, unrepresentative political ideology.” The authors do not define “extreme,” nor do they provide any data to support their claims regarding political representation. They argue that something must be done within law schools about this extremism, but they don’t say exactly what it might be.
The authors are honest about how law schools derive marketing cachet from Supreme Court relationships (for example, by providing law clerks). They may be somewhat less than candid, however, about what is really troubling them: the Court’s judicial philosophy is not aligned with their personal preferences. In this regard they tend to represent the general intellectual culture of the law academy, whose members struggle to cognitively coordinate legal and political system facts with their private ideology. This is often coupled with deference to authority, including a kind of “oedipal rebellion,” and a longing for the paternal security of the progressive Warren Court (Jerome Frank’s classic Law and the Modern Mind, where he portrays the law as a substitute for a father figure, may be sound).
Current rulings made by a majority of the Court, however, were established under the same nomination and confirmation process—neither extreme nor unrepresentative—that will potentially return the Court to the sensibilities shared by the authors. How would law schools otherwise coherently “grapple” with prestige, if prestige is defined by partisanship? One of the central tenets of law is neutrality, which is an intellectual maturity that law students must acquire, even if the Courts (or professors) occasionally may not.
Former judge and University of Chicago Law lecturer Richard Posner (among the most cited legal scholars) reminds us that the Supreme Court, in particular, is a political court (or a politicized one), derived in ways different from other types of judiciaries. There is never a “stable” public opinion concerning the Court’s makeup: it always has its detractors and champions, and those factions constantly shift over time. This rate of change in justices, however, may increase if the recommendations of the Presidential Commission on the Supreme Court are followed, which tilted favorably toward term limits. Several of Mr. Huq’s colleagues from University of Chicago Law served on this Commission. There are alternatives to the Supreme Court’s democratically derived changes among liberal and conservative majorities, such as court packing, which can cement one group over another. The same Commission determined this unwise.
The authors take legal reasoning into a difficult place when they are less than forthright about their activism: they may deplore the Court’s current majority positions (and they revel in what Posner calls Court “shadow-management” by law professors), but the concept of legal neutrality is not their object. They are, as celebrated Columbia University legal scholar Herbert Wechsler discussed in another Supreme Court context, not pursuing a judicial or legal position, but instead expressing a desire for the results they seek, and the Court is merely a “power-organ” for achieving them.
Neutrality, balancing, economics, and the Constitution itself are apparently inconvenient legal orthodoxies, as the professors grandstand on their plank of contempt. There isn’t one constitutional contention they raise that would not be immediately reversed if they had their way (such as abortion for example), and what isn’t reversed would likely be zealously pursued, including gun control, “disinformation” speech suppression, denial of habeas corpus on political grounds, selective property takings, and warrantless search. Indeed, the Constitution of the United States is currently in a state of political siege, but there is not a peep of protest from the law academy: it is evidently fine with them, as long as the ends are their ends. Consumer advocate and Harvard Law graduate Ralph Nader has asserted that law education should be divided into two groups: a school of law, and a school of lawlessness. A formal rule of law is, unfortunately, often viewed by the law school academy as a flexible convenience.
But more than that, one must ask, from what higher education culture were the authors themselves indoctrinated? What kind of modern law school regime produces members of the academy who are not merely polemical, but actually believe what they are saying in the context of such political partisanship, which they seek to permeate among law students? Even among the standards of plain law and economics, the authors’ argument is advanced by a fallacy of assertion. The traditional Chicago School of pragmatism, and of robust facts and data, by contrast, appears nowhere in the authors’ sensibilities.
The prestige that the authors seek by an imaginary ideological solidarity with the Supreme Court is a market indicator perhaps better pursued through law school rankings. In this regard, the authors may have taken both their schools down in the rankings of public opinion, as their ideological passions threaten the objective teaching standards that their respective institutions should uphold. The hard work of Supreme Court structural reform is otherwise not for these law professors, or for the law academy generally: they just want what they want.
In the meantime, term limits are the most reliable way to bring more representation to the Court, by drawing more frequently from a broader array of society, and even professions. But the authors may find themselves in a similar state of agitation: the American public is generally more moderate, if not conservative, than most law schools, and the media certainly, portray.
Image: Anna Sullivan, Public Domain