A few days ago, Slate’s Mark Joseph Stern put out a call on twitter to academics to find out how they would teach law going forward in light of the current Supreme Court state of Affairs. He posed his inquiry in a relatively fair and neutral way.
That the question was asked suggests a bias in the answer, but given the needless upheaval created this term, it was hardly an inappropriate question. But Mike Sacks, who not too long ago was a law student whose claim to fame was attending every Supreme Court oral argument for his blawg, First One First Street, and has since gone on to not practice law, but become a writer and “visiting scholar” at Duke, said the words out loud.
Mike’s expectations were not dashed, as the reliably progressive legal academics bemoaned the death of law at the altar of malevolent power. Not to be outsnarked, Mike chided the unduly passionate with his it’s “always been all power and no law,” which has how it may appear to non-lawyers. There is, of course, the premise that as wrong as the Supreme Court may be (which is hardly a new phenomenon for any of us), it’s not because they are evil but because they hold a different view than we (I?) do. Hey, if they can still find dog hits to be probable cause, how can you not disagree?
But what and whether progressive academics or their snarkier and more cynical fellow travelers believe that the Supreme Court is no longer a legitimate branch of government, there is another question raised by MJS and Mike Sacks. If so, then what?
If there is no law, then why go to law school to waste three years of your life learning a subject that doesn’t exist? Why go on to practice law if it’s a sham? Why bother to teach law if there’s nothing to teach other than how a majority of evil people are engaged in a policy power play to get their way. And if there is no law, why bother to represent clients when there is no possibility of winning because the game is rigged?
If it’s true that there is no law and just power, then the only rational response is to take up arms and seize power back. If law doesn’t exist, then learning law is nuts, practicing law is nuttier and teaching law is nuttiest.
But of course. we do win. Not all the time. Not nearly as much as we should. Not enough. But sometimes. We win in trial courts and appellate courts. Sometimes we even win in the Supreme Court. Even this Supreme Court.
The cynicism and nihilism reflected by those academics who choose to condemn the Supreme Court and the law as dead has grown and become a fairly common refrain. Whether they truly believe it or just say so to get their social media pals to validate their feelings is unclear, but they are doing as much as they can to teach the public to disdain the law and courts as illegitimate. Are they teaching their students this as well?
Not having attended law school for more than 40 years, I have no clue what’s being taught these days. Some law students say that they feel that they’re receiving a sound education, although it’s unclear how they would know since they have nothing to compare it to. Are they being taught to be lawyers with the skill and will to fight for their clients or are they being indoctrinated into being warriors for social justice? Are they being trained to argue before the Supreme Court or to despise the justices as paragons of evil?
DICK. The first thing we do, let’s kill all the lawyers.
There is more than one way to kill all the lawyers, but perhaps the most effective and least bloody way is to stop teaching students to be lawyers in law school so they come out the other end incapable of being lawyers because they were taught there is no point to it as there is no law, only power. Is that what they plan to do?
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A lot of angst but, I mean, aside from the abortion decision the other three “controversial” decisions seem reasonable to me and not inconsistent with the law.
Letting parents choose to spend their allocated education funds on the school that they choose – THEY CHOOSE – even if it includes religious schools that the state has designated as certified is not the state establishing religion.
The right to bear arms means the right to own arms and, you know, bear them.
And total deference an agency to let them write law, and change their own interpretation of the law through time is obviously not consistent with the constitution. This doesn’t just affect the EPA. Reason has been covering how the FDA has been wiping out the e-cig industry by denying them permits, one at a time. Does the law written by Congress allow the FDA to eliminate an industry, one that is arguably beneficial? I doubt it. Do Stern and his ilk care? Nope.
These things are all rational decisions to an independent like myself, completely consistent with the rule of law. I think that an agency flipping back and forth on what law written by Congress means depending on the jersey color of the President is a lot more harmful to the rule of law than making congress define it in the beginning is. But I’m not a zealot so what do I know.
The Supreme Court has almost always been conservative in its approach, with good reason even if we hate the outcome. The different here is that progressive reject the notion that there is any possibility that the conservative wing is sincere and rational, since no sincere or rational person could possibly disagree with them.
But the next question is do we keep arguing our cause before the court or, if it’s to no avail, arm themselves, take to the streets and fight power with power?
One of your approved music posters needs to put up Won’t Get Fooled Again.
I can’t see how shotguns in the street leads to the restoration of abortion rights. And I don’t know about religious schools and concealed carry, but the shotguns would be opposed to Sterns position in the regulatory agency case. Most us out here have had to deal with the agencies’ capriciousness (unlike Stern) and it really sucks.
The rule of law worry is overstated, like a lot of the concerns of the zealous,
Gimme a break, P.
One, you should know by now I’m not a big fan of beat to death classic rock songs, or suggestions that I post them… (maybe just ask the Admiral for a hall pass, and DIY?)
And, two, it appears to me that we keep getting ‘fooled again’ by idiot progressives, no matter how worn the groves on that record is.
So, for you ( in jest, my friend) and Mike…
The first rule of law is, Do NO Harm. If the “practice” of law were not so harmful, so often, well perhaps some of us “law-abiding” citizens would not despise it–and the courts– as much as we do.
The Golden Rule of Law is, Do unto others before they do unto you, and with a heavier hand. And don’t forget to bill/charge them in the process.
Some of us “law-abiding” citizens? Oh Bill.
Something about “A house divided…” comes to mind here.
Seems like “not accepting that the other might be rational” is now normal. Not sure what you can do about that, other than hope that the eventual divorce is reasonably peaceful, but historically dealing with The Other tends to be … kinetic.
Why bother to teach law if there’s nothing to teach other than how a majority of evil people are engaged in a policy power play to get their way?
“Stanford University law professor Pamela Karlan…continued to earn nearly $1 million a year from Stanford while working for the government.” (NY POST 7/12/2022)
Then again,
But she has to sit in faculty meetings with Michelle Dauber, so…
Imagine being a criminal procedure professor in the 1960s. Probably two or three bedrock cases of criminal law and procedure being overturned every year by the Warren Court, including in some of those cases a relatively thin amount of legal reasoning like the Miranda decision. Yet somehow law professors back then didn’t throw their hands up and moan “it’s all power”: they soldiered on and taught the law. Maybe there’s something to be said for keeping up a stiff upper lip that today’s legal academia could learn from.
I know people are acting gut shot over Roe being overturned. But to have a court say, for a change, this is a legislative issue to be decided by your elected officials was a bit refreshing. Of course it goes against the idea that took hold in the middle of the 20th Century of the jurist as a sort of “super legislator;” but it is in line with the idea of Chief Justice Roberts that the role of the court is to ‘call balls and strikes, not write the rulebook.”
Had that been the response in Roe, that would be one thing. Undoing a right after 50 years is very different than doing it in the first place.
What is so magical about 50 years? By that logic, Plessy stood for 58 years and would still be the settled law on segregation. A bad decision is a bad decision.
The 50 years wasn’t the point, but that after a lengthy period of time, both law and institutions build up around the precedent such that eliminating it will result in massive institutional disruption, which is what we’re seeing now for those too stupid to realize it wasn’t going to be so simple as “we won, you lost, tough nuggies losers.”
Plessy didn’t establish a right and Brown didn’t eliminate a right. Nor does the propriety of overturning precedent in one extreme case mean stare decisis is meaningless in every case and legal stability is gone forever. I’m aware of the talking points of the non-lawyer right. They’re dumb, and I’m being nice here by not expressing just how utterly fucking moronic it is.
One might also reasonably look at it as a conversation that needed to happen for over 50 years, as well. And was continually getting worse, frankly. Now we’re stuck between über zealots on both sides, unfortunately