Sunday, November 14, 2004

Supremes of the Future

Jeff Rosen's article in today's NY Times is half right. Rosen accurately punctures liberal scare tactics warning about the conservative post-Earl Warren Supreme Court:
In the last 36 years, four Republican presidents have appointed all but two of the current nine justices.

But on the most contested social issues - abortion, affirmative action, school prayer and gay rights - the court has sided with liberals, while only modestly advancing the deregulatory agenda of the Republicans.

"If the goal of Republican presidents was to build a court that exercised its own power with greater restraint or adhered strictly to the original constitutional text, then they have clearly failed," said Thomas Keck, a political science professor at Syracuse University and author of "The Most Activist Supreme Court in History."
But Rosen also claims that the left--wrong 'till now--is about to be vindicated:
Today, when President Bush says he wants to appoint strict constructionists, he seems to have in mind justices who subscribe to the "Constitution in exile" movement. Indeed, former administration officials say all of the names on Mr. Bush's short list for the Supreme Court are considered strict constructionists who are closer to Justice Scalia than to Justice O'Connor.

"An entire generation of lawyers have been reared and trained in Justice Scalia's philosophy," said Jack Goldsmith, a professor at Harvard Law School, who led the second President Bush's Office of Legal Counsel after Mr. Yoo. "So the Bush administration is likely to be more successful than its predecessors in finding reliably conservative nominees."
This is nonsense, as Ann Althouse explains:
I very much doubt that many law students are being "reared and trained" to think like Justice Scalia! My sense is that the Warren Court vision of constitutional law still prevails among law professors. In fact, it's probably safe to guess that Justice Scalia's positions are routinely derided in most law school classrooms! It is true at least that students have read the conservative Supreme Court opinions (though I bet they were informed by their lawprofs about how wrong and bad these decisions are) and they have been able to participate in the Federalist Society if they wanted to pursue the conservative viewpoint. But the liberal position continues to dominate.
My law degree dates from the early 1980s--and my experience was exactly as Althouse describes. Not a single law professor purported to teach, or use, originalism or strict constructionist analytical techniques. About half the faculty made a pretense of neutrality, while the other half embraced the "critical legal studies" movement, which is the opposite of Scalia's approach.

I was one of the few conservatives in law school. My views were tolerated at best, derided at worst. I remember a First Amendment course taught by an old-time socialist. He was smart and funny, but increasingly frustrated with my interjections. So, after calling on me about halfway through the semester, he paused for a few seconds, put hands on hips, and said "Carl--you're a wrong thinker and should be liquidated." He never solicited my views again.

Conservative lawyers and conservative judges certainly exist. But it's anything but an "entire generation," and it's not for the reasons Rosen imagines. Rather, I'll bet their experience was similar to mine. We few originalists are conservative despite, not as a result of, law school.


In USA Today, Legal Times Supreme Court Tony Mauro agrees that liberal hysteria about the court is over-blown.


Anonymous said...

Your professor was half right.

@nooil4pacifists said...

Wonder which half?