Law School Faculties Need More Intellectual Diversity

There is something about judicial nominations that brings out the worst in U.S. Senators. Judging from the academic debate over the nomination of Judge Neil Gorsuch to the Supreme Court, it seems to bring out the worst in legal academics too.

Judge Gorsuch is an avowed proponent of “originalism,” the idea that the original public meaning of the Constitution’s text should control the outcome in constitutional cases. To some this approach to constitutional interpretation may seem like common sense, but it is hardly a universal view. Although many judges and justices ascribe to an originalist judicial philosophy, this approach is not popular in the academy.

What is notable about the academic debate over originalism is not that such a debate exists, but that so much of the debate is misinformed—misinformed about what originalism does or does not entail and why it might be endorsed. In the weeks leading up to the vote on Neil Gorsuch’s nomination, numerous legal academics rose to attack poor caricatures of originalism, and their misinformed attacks were often repeated in the Senate.

Some of the straw men offered by otherwise-notable academics were so flimsy, it was as if they had never encountered a real originalist in the flesh, let alone spent time trying to understand the point of view they were critiquing. Again, the problem was not that they were attacking originalism, so much as the critics did not even appear to comprehend the target they were shooting at.

There are many possible reasons for the empty debate over originalism. One possibility is that some of these critics lack familiarity with originalism, along with other points of view that are unpopular in the academy.

The existence of ideological imbalance on law school faculties has been documented in numerous studies. Analyses of law school hiring, political contributions, and legal scholarship all find left-right disparities. While most law schools have a few token right-leaning professors, these scholars are often relegated to “private law” subjects (e.g., business, contracts, intellectual property), and are less prevalent in “public law” subjects (e.g., constitutional law).

Indeed, most major law schools have fewer conservatives or libertarians on their faculty than can be found on the U.S. Supreme Court.

As a consequence, at many law schools, students rarely encounter the forceful articulation of right-of-center views. Thus it should be no surprise that many who study in American law schools fail to understand such views. Reading a book or some court opinions can only do so much.

Training lawyers requires teaching students how to understand and get inside the arguments of those with differing interests, outlooks, and orientations. It requires developing the ability to understand and articulate points of view that one does not believe. Doing this effectively requires exposure to differing points of view, and that’s difficult to achieve when faculties are ideological monocultures and echo chambers.

Most legal academics are well to the left of those whom law students will represent, as well as to the majority of judges before whom they will practice. This imbalance affects students. I would argue that it affects academics as well. If you are not forced to confront, thrust, and parry with an alternative worldview, chances are you will not understand it, let alone grasp its strengths and weaknesses. Instead, you are more likely to imagine a caricature—a caricature formed as much by your own in-group’s biases as by the relevant characteristics of that philosophy.

A lawyer need not agree with a client or a judge to be an effective advocate, but it is important to understand the perspective of the position one has to represent—as well as the perspective of the other side. The best legal advocates fully comprehend the strongest arguments for the other side and are able to present arguments that can appeal to decision-makers who may approach difficult legal questions from a perspective quite different from their own.

The ideological imbalance that pervades legal academia not only fosters groupthink, it undermines the ability of law schools to train effective legal advocates.

The problem is not the dominance of progressivism or modern liberalism, so much as the existence of a persistent monoculture. As Georgetown’s John Hasnas notes, “surely the robust exchange of ideas is enhanced by exposure to and interaction with people who have diverse political and philosophical viewpoints, not only cultural or ethnic backgrounds. Actually engaging with those with whom one disagrees can break down stereotypes and promote understanding across ideological divides.”

Liberals and conservatives alike can fall prey to motivated reasoning and confirmation bias. One benefit of ideological and viewpoint diversity is that it can provide a check on such tendencies. For would-be lawyers, it facilitates a greater understanding of one’s potential clients and their adversaries.

The lack of ideological diversity on law school faculties is fairly clear. The causes of the ideological imbalance, however, are the subject of some dispute, likely because a range of factors are in play. As I’ve noted in other writings, there is almost some degree of self-selection (i.e., some conservatives and libertarians are more likely to pursue more remunerative careers than some liberals). At the same time, academic institutions tend to replicate themselves, meaning that they are institutionally unlikely to diversify themselves without concerted effort.

Bias – conscious and unconscious – also plays a role. I know of law professors who would refuse to support hiring anyone who had clerked for Justice Thomas, and others that would not even consider interviewing fully qualified job candidates with overtly right-leaning entries on their resumes. And because it is always easier to sink a candidate than to get someone hired, a little bit of bias can go a long way.

One way to shed additional light on the causes and consequences of ideological bias in legal academia would be to study the question, such as by analyzing data from the Association of American Law Schools (AALS) Faculty Appointments Register (FAR). Analysis of such data in the past has produced interesting findings on racial disparities in law school hiring. An analysis of ideological factors in hiring might likewise be illuminating.

Alas, the AALS will not allow such research to be conducted. While the AALS has allowed researchers to use FAR data to examine the role of race in law school hiring, it refuses to allow a similar inquiry into the role of ideology. It appears to have, as my colleague George Dent notes here, “no interest in viewpoint diversity.”

The AALS styles itself as a learned society. Its stated mission is “to uphold and advance excellence in legal education.” Further, the AALS proclaims that “In support of this mission, AALS promotes the core values of excellence in teaching and scholarship, academic freedom, and diversity, including diversity of backgrounds and viewpoints, while seeking to improve the legal profession, to foster justice, and to serve our many communities—local, national, and international.” (Emphasis added.)

On what basis, then, does the AALS refuse to allow researchers access to FAR data to conduct legitimate academic research? The AALS cannot claim this data is inviolate for, as already noted, it has allowed researchers access to this data before. It is almost as if the AALS is afraid of what such research might find.

Law schools, as much as any other part of the academy, rely upon a robust exchange of views to further their pedagogical mission. Insofar as law school faculties fail to reflect and represent the range of views found within the legal profession—let alone society at large—it is difficult for law schools to fulfill their pedagogical aims. If law schools (and the AALS) were truer to their mission, they would do more to understand and address the causes and consequences of ideological uniformity on law school faculties.

  • Glen_S_McGhee_FHEAP

    So, what is your definition of originalism? Concretely, where can the “original public meaning” be found? Like a fly trapped in amber — but where?

    • common sense

      Well, there are different flavors of originalism, but the basic idea is that the court should enforce the law (or constitutional provision) that was actually voted on by the people. And since our laws are written in an evolving language, like English, there are times when the current meaning and original meaning of a word differ. When those situations occur, the definition and understanding of the term as voted on by the people at the time should be controlling, not the current, “evolved” use of a term.

      For example, the term “regulate” was synonymous with “adjustment” or “balancing” in 1789, when the constitution voted on and approved. In the 20th century, another definition emerged, with synonyms of “rule,” “directive,” “decree” etc. It’s a subtle shift, but if you were a judge ruling on what the term “regulation” meant in a certain circumstance, which definition should you use?

      • Glen_S_McGhee_FHEAP

        Good point: “if you were a judge ruling on what the term “regulation” meant in a certain circumstance, which definition should you use?”
        Are you referring to a federal case?

        https://en.wikipedia.org/wiki/Originalism

  • Scott

    So, conservatives support affirmative action now?

    I look forward to business schools hiring a number of socialists and right wing think tanks hiring economists that question capitalism.

    • George Leef

      No. If you carefully read Professor Adler’s article, he argues that law schools would benefit their students by having a faculty that’s able to better convey to them the differing views they will need to deal with in their careers. That is nothing like the “affirmative action” that insists on having quotas for people based on nothing more than their ancestry. Diversity can be beneficial in some circumstances. I think Adler has identified one of them. Do you have an argument against him?

      • Scott

        Sure, it’s disingenuous. I never see this argument from conservatives about needing to hire people who are far left to teach or join right wing think tanks or have meaningful roles at Fox News or other major conservative outlets. It’s purely one sided- they complain about a lack of “intellectual diversity” in academia or “MSM” but never when it comes to their own institutions with glaringly obvious right wing leanings. It’s just an excuse to hire fewer liberals b/c that will reduce their impact on society.

        Also originalism is mostly clever marketing for passing a conservative policy agenda from the bench. Actually repealing a bunch of laws that provides benefits to people would be nearly impossible through legislation b/c of how unpopular it would be- they’d get voted out next election. But if they strike down a bunch of laws through the courts for made up reasons then it has the aura of being impartial so there is less of an outcry. The author was one of main architects behind the frivolous King vs Burwell case at the Supreme Court about Obamacare that 3 far right judges voted in favor of. 2 more far right originalist and the whole law would have been struck down eventually a la what happened all the time in Lochner era. Basically, judicial tyranny. To clarify, a far left court would be terrible too for the country and is just as bad but in different respects. There needs to be a way to make the courts less powerful and provide more deference to democratically elected legislatures.

        • George Leef

          That still is no argument against Professor Adler’s point that law students would be better served if law faculties had more people who dissent from the generally leftist philosophy of most professors. And while he opens his piece with the widespread misunderstanding of Originalism (which is emphatically not a policy agenda at all, but rather an effort at deciding constitutional issues on the basis of the intended meaning of the document rather than on supposed modern feelings, international aw and so on, there is much more to the argument. On a wide array of other issues, there are non-left perspectives that students are not apt to get from leftist professors, especially those who regard themselves as advocates for “progressivism.” For example, antitrust, land use planning, and labor law all have leftist underpinnings that have been strongly criticized, but students are unlikely to hear about that criticism.

          One more point, Lochner was not judicial tyranny, as is usually proclaimed in law schools. It protected individual workers against legislative tyranny of dictating to them how to contract. Professor David Bernstein’s book Rehabilitating Lochner is essential reading.

          • Scott

            Your view on Lochner is terrifying. 9 unelected judges with life tenure just strike down whatever laws they don’t like by democratically elected legislatures. If people didn’t like the laws then they could vote those politicians out and bring new ones in to replace them. It’s not the courts job to legislate from the bench. A return to that era would mean no matter who citizens elected and what progressive economic or civil rights legislation they passed at the will of the people, it’d be struck down by 9 unelected judges and it could go on for a decade or two unless Democrats decide to change the judiciary Act. Plus a full rollback of the civil rights era and new deal era despite the fact that no politician would touch most of those issues b/c they’d get voted out next election. That’s not a democracy- that is judicial tyranny.

            Likewise, roe v wade was wrongly decided and was judicial activism from the left. But Democrats could easily pass a law when they get back in power that makes it legal- less than 20% of the country thinks it should be outright illegal in all circumstances. Or the gay marriage ruling- with majority approval from the country, it would be easy for them to pass a law when back in power that makes it legal. They are not dependent on judicially active, anti democratic courts to pass their policy agenda.

          • George Leef

            Would you have thought it “terrifying” if the Court in Plessy v. Ferguson had struck down the Louisiana law that mandated separate rail cars for blacks and white passengers?

            It is not “legislating from the bench” when judges rule that a law is unconstitutional because it deprives people of rights they are guaranteed. In Lochner, that was the right to contract for as much work time as you chose. Leaving individuals free to make that decision for themselves was a perfectly proper application of the 14th Amendment.

          • Scott

            Plessy is not a good example b/c there was a Civil Rights Act adopted by Congress in 1875 that, if not gutted for no reason by the Court in 1883, would have (along with the 14th amendment) allowed for striking down the Louisiana law and not created “separate but equal.”

            Also, a lot of these recent voter ID laws wouldn’t exist if Shelby County didn’t gut the voting rights act.

          • George Leef

            Irrelevant to my argument. In Plessy, the Court refused to overturn an obviously discriminatory law duly enacted by the legislature. Had the Court done so (as Brown would do in 1954), would have have been terrifying? Moreover, you don’t have your facts right. The Civil Rights Act was passed in 1866 and the 14th Amendment two years later. The case that greatly diminished the power of the 14th Amendment was the Slaughterhouse cases of 1873, in which the Court turned a blind eye to the same kind of special interest legislation that it struck down in Lochner.

          • Scott

            Civil Rights Act of 1875

          • George Leef

            Sorry, but I defy you to show any instance when an American court struck down any law because it was redundant. And if one did so, I think that would be a perfect example of the judicial tyranny you denounce.

          • Scott

            Courts are striking down voter ID laws in this era w/ clear discriminatory intent.

          • George Leef

            You’ve changed subject, but that’s fine. We are in agreement that laws passed with the intent to favor some citizens or damage others should be invalidated. That’s why I regard Lochner as rightly decided. It was legislation intended to help some workers by damaging the employment of others.

  • Chris Martin

    I think you could test whether someone is an originalist or not by looking at their reaction to how Obama’s nomination of Garland was treated by the Republican Senate. Republicans violated the Constitution by claiming that the next president rather than the current president has the authority to nominate justices when a vacancy arises. I saw no evidence that Gorsuch condemned this violation of the constitution, which proves he is not an originalist but rather a hypocrite. Any other “originalists” who did not condemn Mitch McConnell are also not true originalists, but hypocrites. I support ideological diversity but I do not support hypocrisy.

    • George Leef

      Sheer nonsense. The Constitution does not obligate the Senate to take any action regarding any judicial nomination (or of other kinds). Moreover, Justice Gorsuch’s many decisions clearly indicate an originalist frame of mind and to declare otherwise because he did not say anything about what other people did is fallacious.

      • Chris Martin

        The constitution is quite clear that the president has the authority to nominate supreme court justices and the Senate is obligated to provide advice and then consent or dissent.

  • Stanw909

    It is time for a new civil rights movement spearheaded by the Justice Department Civil Rights Division . Justice will go after institutions and businesses that descriminate against people for their political and / or religious views . The ” Polically Correct ” have run roughshod over anyone who doesn’t agree with them for decades . It is time that the Justice Department goes after the Bull Connor’s of the left that control the Educational system , Sciences , Hollywood , News media and private business. Contrary to popular belief , private business has no more right to descriminate against political thought today than Woolworths had a right to descriminate against people of color 50 years ago . This is the Civil Rights issue of our time . The first amendment is the lynchpin of our republic and must be protected and it’s high time it gets protected for everyone.