Law Schools Have a Supreme Court Problem

If you go to the website of any one of the nation’s leading law schools today, you will find prominent claims being made about the institution’s links to the federal judiciary at large, and to the U.S. Supreme Court in particular. Penn Law, for example, brags about its faculty being cited by the justices. Georgetown Law boasts that it has offered dry runs, or “moots,” for “100 percent” of cases before the court in 2019-20. Many schools prominently advertise their Supreme Court clinics as venues for students to gain exposure to the court — and loudly announce the number of students placed in prestigious clerkships both with federal judges generally and the justices in particular.

Close ties to the Supreme Court are central to the luxury brand that elite law schools aim to convey. This is not because most students will ever clerk for the court. Nor will they practice constitutional law of the sort that makes up much of that body’s narrow docket. Rather, law schools bask in the reflected glory of the court because it represents power of a sort that academics rarely taste. It doesn’t hurt that many law professors wallow fondly in nostalgia over the days when the legendary Warren Court desegregated the schools and protected voting rights.

But those days are over. Now, 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. In the past month, the court has erased the right to reproductive choice; gutted the nation’s power to mitigate climate change; expanded the flow of lawful guns in public; and injected religion into public schools. And it is just getting started.

The reasons for this sharp turn are hardly unknown: Today, five of nine justices are appointees of presidents who lost the popular vote and of Senate coalitions that represent a minority of the country. All five are Republican. Along with Clarence Thomas, all are aligned with the influential, conservative Federalist Society. Acute political polarization — in which Republicans have moved more sharply to extremes than Democrats — means that when the GOP appoints a disproportionate number of justices, the resulting decisions are very likely to be far from the ideological center.

While the court reflects views about gender, guns, crime, and democracy sharply at odds with those of most Americans, the legal profession tilts the other way. Lawyers generally skew left, as do law professors. Law students, in our experience, are even further to the left.

The resulting gap between the Supreme Court on the one hand and lawyers, law professors, and law students on the other presents a dilemma for the legal academy: How do you establish the value of your institutional brand when the ordinary means of signaling credibility have become so closely associated with a minority’s ideological projects — projects that many law students and lawyers find profoundly morally and legally suspect? What does it mean to produce “quality” scholarship and “good” teaching when the arbiter of law seems a partisan actor? And what happens when even assertions about what “methods” judges should use, notably “originalism,” are strongly coded as ideological?

These tensions are already starting to surface. For example, consider Yale Law School’s well-documented contretemps over student protests. The same is true for the public conniptions over the Yale dean’s rapid-fire praise of the alumnus Brett Kavanaugh’s nomination to the court, as well as the praise offered by liberals or Democrats of Neil Gorsuch, Kavanaugh, and Amy Coney Barrett. Or consider a recent, vitriolic debate about the Emory Law Journal’s decision to withdraw an invitation to publish a festschrift essay that read to many as trafficking in troubling tropes about race. In all of these cases, students’ actions can be understood as responses — valid or not, we take no view here — to a sense that the law is shifting under their feet in ways that disparage or exclude them.

These disputes are not going to stop. Rather, as students in abortion-restrictive states see the health and well-being of their peers directly imperiled, as the court casts more shade on same-sex marriage and the equal dignity of LGBTQ youth, the conflicts will become even sharper.

These disputes draw attention to an uncomfortable reality for law schools, law faculty, and law students: Law schools now exist in a queasily symbiotic bond with the Supreme Court. This institutional intimacy not only places pressure on ideals of analytic rigor and candor long thought necessary to academic thought — it also puts schools at odds with many of their students, potentially imperiling the task of educating those students to be ordinary lawyers of decent quality.

Law schools both lend legitimacy to the court and gain prestige from it. This institutional symbiosis exists without regard to the ideological leaning of individual professors, who tilt Democratic (full disclosure: this includes us).

On the one hand, law schools garland themselves with connections, real and imaginary, to the justices — through clerkships, clinics, and the hiring of former clerks on the faculty (full disclosure again: that includes both of us). Some are even named after Supreme Court justices, while others have chairs named for them. Having hitched themselves so tightly to the court, law schools can’t easily disentangle themselves now.

On the other hand, the legal academy offers the court commentary, praise, occasional criticism, and, most important, attention, all of which confirms and flatters the court’s own sense that it plays a necessary role in the polity. It is not a stretch to say that the main job of the constitutional-law professoriate has been to legitimize the court by explaining and at times furnishing an ex-post rationale for its work product. Look at the professorial blogs at the end of the most recent term, and one can see this machinery of justification at full tilt.

Further, even if the professoriate as a whole leans left, it is hard for individual professors to dissociate themselves from the institutional context in which they work. Almost all are acutely aware that their schools’ fortunes depends on favorable attitudes of the justices for clerkships and more. Whatever one’s own views, this creates a powerful undertow pulling against too-sharp criticism. It also inclines scholars against a serious reconsideration of their (indeed, our) role in burnishing the court with a patina of neutrality and respectability.

In the classroom, law professors are also socialized to offer students both sides of an argument and to treat judicial opinions as good-faith expressions of rigorous legal analysis. There’s much to be said for this. But as the court jerks to the right, and makes increasingly unsavory, fact-free arguments, this risks making efforts to be “balanced” an exercise in mimicking talk radio.

Now that the court has embarked on a quest against reproductive choice, LGBTQ rights, restraints on police violence, voting rights, climate regulation, gun control, and who-knows-what else — often in blatant disregard of precedent and empirical facts — the institutional linkages between academy and bench will bite harder and harder. The ground on which good scholarship and effective teaching happens in law schools will become more elusive.

There is no easy way out. Law schools can look forward to more bitter public fights, more disillusioned students, and increasing doubts about the social value of a scholarly enterprise so beholden to the prevailing partisan current of the day.