Today’s Law-School Graduates Can’t Speak the New Supreme Court’s Language

By Nicholas M. Gallagher
Wednesday, February 20, 2019

With Brett Kavanaugh on board, the Supreme Court appears to have a solid right-leaning majority for the first time in 80 years. The split is 5–4, but the conservative justices are considerably younger than their Democratic counterparts: The oldest conservative, Justice Thomas, is only 70, making him a decade younger than Stephen Breyer and a decade and a half younger than Ruth Bader Ginsburg. Barring unexpected ideological shifts or tragedy, this majority will likely endure for a generation, producing a significant shift in American law.

As we await the first flood of decisions from the new lineup, it’s worth asking how the shift will play out for the legal profession as a whole. For one thing, it will expand the gap between the legal academy and the courts into a chasm.

As Professor Nicholas Quinn Rosenkranz of Georgetown Law observed in 2014, “There are more conservatives on the nine-member United States Supreme Court than there are on this 120-member faculty.” Such a ratio was — and still is — the norm for elite law schools. This means that at best, students learn originalist and textualist thought from teachers for whom it is a second language. At worst, they are taught fantasy law — professors skimming past the law as it is, much less as it is likely soon to be, in favor of theories that would be adopted only if the Warren Court were resurrected.

It says something about hiring standards at top law schools that the prolific Josh Blackman, who won the Federalist Society’s 2018 Joseph Story Award for an academic under 40 “who has demonstrated excellence in legal scholarship,” is tenured at the South Houston College of Law rather than at a top-ten school.

This impasse may hurt the Left as much as anyone else. The Federalist Society, the few conservative law journals such as the Harvard Journal of Law & Public Policy and the NYU Journal of Law & Liberty (of which I am editor-in-chief), and leaders in the judiciary and the political branches have done an effective job of knitting the scattered conservative faculty into a cohesive intellectual force — even if the disparity in law-school resources is sometimes frustrating for a movement that depends on the analysis of history and language.

Meanwhile, the legal Left, as even sympathetic observers have noted, has failed for three decades to develop an overarching counter-idea to originalism. This may be because its members have not had to confront scrutiny from colleagues to the same extent that originalists have. (It was such scrutiny that led to the shift from “original intent” originalism to the intellectually much stronger “original public meaning” originalism.) Instead, the legal Left has ensconced itself in a world where the main debate is between the center-left liberals and hard-left progressives. The current issue of the Columbia Law Review features articles such as “Can Free Speech Be Progressive?” Top-school profs reacted to the Kavanaugh confirmation by calling for the packing or abolition of the Supreme Court. And the student bodies look upon the professors like Jacobins upon Girondins.

Even where the far Left does not predominate, things are less healthy than they at first seem. For instance, not every leading journal is overtly partisan. Many are filled with reasonable-sounding, wonky position papers. But even these, though cloaked in centrist language, are written to boost left-wing positions, and conservative Supreme Court judges — not to mention their many counterparts on the influential courts of appeals — are unlikely to be moved by such overtures.

Practicing lawyers have taken a notably different approach to the new realities than have their tenured counterparts. Mark Joseph Stern at Slate recently chronicled the rise of the “Gorsuch brief” — an originalist/textualist brief filed by the ACLU and kindred organizations arguing that the original meaning of a statute or constitutional amendment supports their position (as it often does on criminal-procedure issues, where a Gorsuch–Sotomayor alliance has shown up repeatedly). Paul Weiss, one of the most proudly liberal BigLaw firms in the nation, just hired a former Scalia clerk (and all-star attorney) Kannon Shanmugam to found its new Supreme Court practice.

Those who want to get things done — liberals as well as conservatives — are looking for lawyers who can speak originalism and textualism, but law schools are not teaching these languages. Sooner or later, something will have to give. Until then, conservatives should not be shy about questioning what’s going on here.

Mandatory three-year law school for all practicing lawyers under the American Bar Association cartel is a relatively new phenomenon in America, and its quarter-million-dollar price tag newer still. Figures as diverse as President Obama and Alan Dershowitz have sporadically questioned the value of the third year. If legal education becomes less tied to the actual law and more blatantly partisan, conservatives should make such questions a sustained chorus. As the old saw goes, maybe when the law schools feel the heat, they will see the light.