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Losing their faith but keeping their jobs


I’m going to try not to be too rude when discussing this ludicrous — ah hell I couldn’t even get to the end of the first clause of the first sentence:

Serena Mayeri, a professor at University of Pennsylvania Carey Law School, traces her recent disillusionment to Trump v. Hawaii. The fact that Kavanaugh’s predecessor, Justice Anthony Kennedy, sided with Trump “left me deeply shaken,” Mayeri said. “It was weeks before I could bring myself to read the opinions in full.”

Shortly thereafter, Kennedy announced his retirement, further rattling Mayeri. “I’ve always considered myself a deeply patriotic person,” she said. “My family comes from Eastern Europe and Iran; on both sides I have relatives who took refuge in the U.S. and taught me to see America as a beacon of hope, however flawed our attempts to live up to our ideals.” Mayeri was crossing the border into Canada when the Hawaii decision came down, and she suddenly felt she did not want to return. “For the first time in my life, I didn’t want to go home to my own country, a country I barely recognized.”

Whoa, sounds serious! A crisis of conscience you might even say. What practical professional consequences flow for our legal academic ingenue from this sudden disillusionment with the previously impeccable legitimacy of such a magisterial body as the United States Supreme Court?

Mayeri’s outlook did not improve as the court took a wrecking ball to her areas of expertise, especially reproductive rights. That doesn’t mean she is seriously considering quitting academia. “There have certainly been moments over the past few years when anything other than direct political action felt like rearranging the deck chairs on the Titanic,” she said. “But being a law professor is an incredible privilege, and I love almost every minute of it.”

Ok then.

In the classroom, Mayeri will try to teach decisions like Dobbs “in broader contexts, such as the alarming global erosion of democracy” and “the convergence of anti-democratic forces that enable the court to thwart majority will.” For law professors, these rulings “have unsettled the foundational premises of our professional lives,” she told me.

What are these premises again?

The Supreme Court has had turbulent and alarming periods in its history before. But since the 1950s, the legal academy has told a particular story about American law, one with clear heroes and villains. The Supreme Court was the hero, vindicating the Constitution’s grand guarantees of liberty and equality for all, abolishing segregation while guarding against authoritarianism. It was the great bastion of freedom, the protector of democracy, the champion of civil liberties, the pure and high-minded manifestation of our nation’s noblest values. Now, it is reshaping into an antagonist of many of those values, facilitating democratic backsliding while rolling back long-settled rights.

This is, like, history? Because it bears essentially zero resemblance to the actual Supreme Court, unless by “the Supreme Court” you mean about 15 minutes of one small slice of that institution’s mostly lamentable history 60 years ago now.

The problem, it’s worth emphasizing, is not that the Supreme Court is issuing decisions with which left-leaning professors disagree

Oh heavens no!

It’s that the court seems to be reaching many of these conclusions in defiance of centuries of standards, rejecting precedent and moderation in favor of aggressive, partisan-tinged motivated reasoning. 

Now this is a truly wild coincidence, but this complaint sounds exactly, and I mean to the word, like what all those Federalist Society types said about Roe v. Wade etc. for all those years, when they were complaining about the “activist” Supreme Court that existed during those 15 minutes way back in the day.

Hey what’s going on here anyway?

Plenty of progressive professors have long viewed the court with skepticism, and many professors, right- and left-leaning, have criticized the reasoning behind certain opinions for decades. But it’s only in recent years—with the manipulation of the justice selection process combined with clear, results-oriented cynicism in decisions—that the problem has seemed so acute that they feel it affects their ability to teach constitutional law.

“It’s hard to think about your own profession—the things you were taught, the things you believed in—abruptly coming to an end in rapid succession,” said Tiffany Jeffers, a professor at Georgetown University Law Center. “It’s hard to ask a law professor to dismantle all the training they had. It’s a difficult, emotional, psychological transformation process. It’s not easy to upend your life’s work and not trust the Supreme Court.”

I’ve got some shocking news for Prof. Jeffers about Santa Claus and the Easter Bunny, too, but I should probably hold off at this difficult emotional and psychological moment.

Jeffers told me that after the flurry of hard-right rulings this June, many professors had their “own personal grieving period.” But they quickly turned toward “grappling with how we teach our students” to understand the Supreme Court’s reactionary turn. “I’m not changing what I teach,” she said. “I am restructuring how I challenge students to think about the law, how it’s a biased set of historical norms based on the past that people in positions of power have had influence over.”

Sounds like a good idea!

Despite the “shock and grief” of this term, Jeffers has not questioned her decision to become a law professor after serving as a prosecutor for 10 years. She believes her new position actually gives her more reach. “There is power in being a lawyer,” she said. “If students aren’t trained to use that power for good—well, that’s why we are where we are now.”

Oh for crissakes. Newsflash: your students are understandably a lot more interested in landing a decently-paying and socially respectable job than in using their (almost completely imaginary) “power for good.”

To conservative ears, this statement may smack of liberal bias. 

Ya think?

After all, a triumph of the conservative legal movement (including many conservative professors) has been to cast law as perfectly neutral, to make believe that it does not reflect subjective value judgments of those who write and interpret it.

In other words, a prime goal of this movement has been to inculcate law students with a legitimation fantasy — a goal that all this left-liberal law professor handwringing about “loss of faith” actively advances!

In reality, much of the legal academy does have a bias—it just isn’t of the liberal or conservative variety. Instead, law professors tend to have a profound trust in institutions, and process, and specifically the institution of the federal judiciary. This faith can limit the terms of the debate—in many ways, it already has. Many professors who personally lean left also cherish the courts and are aghast to see them exploited to promote a political agenda. Indeed, many of the professors I spoke to for this article would not connect their personal political leanings to their reverence for the court. Or at least they wouldn’t have until recently.

Jesus Christ. The notion that courts of ultimate jurisdiction, and most especially the SCOTUS, could somehow operate in a way that would not “promote a political agenda” is incoherent gibberish. “Political neutrality” in this context is a complete oxymoron: it’s like arguing that tax rates should be set at a politically neutral level for politically neutral purposes.

Plenty of legal academics, no matter how they lean politically, try to refrain from introducing their beliefs into the classroom teaching at all. 

Can someone explain to me exactly how that’s supposed to work? Because not introducing your (political) beliefs into the classroom, to the extent possible, is just as much a political choice as introducing those beliefs! Specifically, it’s the political choice to engage in some intellectually spurious institutional legitimation, as opposed to treating your students like actual adults.

Sorry for all the exclamation points but seriously.

“I have always perceived of the law as a tool for justice,” Dellinger said, “and my faith that the law is being used toward that end has definitely been shaken by this Supreme Court.

I think I see the problem here.

Many many paragraphs into this cri de coeur reality begins to intrude, if only briefly:

For progressive legal realists, this term felt like a bleak confirmation of their worldview. David Cohen, a professor at Drexel Kline School of Law, said he didn’t expect SCOTUS “to do anything other than be the political branch of government that it is.” He has long taught students that “doctrine and precedent” matter less than the justices’ “ideologies, values, politics, and biases.” Cohen added that “what this version of the court is doing is not really any different than past courts”; it’s just more conservative.

This should all be incredibly obvious to anyone who has been paying any attention to — checks notes — the history of the Anglo-American legal system or for that matter any other legal system, but apparently it still counts as some sort of radical jurisprudential position!

The thing about legal realism, properly understood, is that it’s not some normative criticism of how courts fail to achieve the goal of neutral adjudication: it’s a descriptive critique of how the whole idea of neutral adjudication in the context of the “interpretation” of constitutional law in something like the American legal system is, again, totally incoherent and oxymoronic. Because that idea is a demand that politics be done non-politically, which come to think of it is an idea that you run into pretty much every day in Broderesque reactionary centrist op-ed bloviation.

Just another one of those crazy coincidences I guess!

I have more to say about this but I’m done for now.

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