Political Polarization, Legal Education, and a Few Modest but Serious Proposals
By Eric Segall
Twenty years ago, Justice Sandra Day O'Connor wrote the following in Grutter v. Bollinger:
Law schools, represent the training ground for a large number of our Nation’s leaders. Individuals with law degrees occupy roughly half the state governorships, more than half the seats in the United States Senate, and more than a third of the seats in the United States House of Representatives. The pattern is even more striking when it comes to highly selective law schools. A handful of these schools accounts for 25 of the 100 United States Senators, 74 United States Courts of Appeals judges, and nearly 200 of the more than 600 United States District Court judges.
Justice O'Connor told us what we already knew: law schools and especially elite law schools, are the "training ground" for many of our nation's political leaders and judges. Justice O'Connor made this observation in the context of her opinion upholding the use of race in admissions by the University of Michigan Law School. Her point, of course, was that the benefits of attending highly ranked law schools were substantial and should be open to people of diverse races, backgrounds, and experiences.
The problem is that, reflecting society-at-large, America's law schools are becoming increasingly divided along political lines with both sides retreating to their respective corners. This development is troubling because echo chambers produce, well echoes, not meaningful attempts at compromises and solutions palatable to broad constituencies. But if there's no one in the room arguing for different positions, compromise becomes much more difficult and stubbornness runs rampant.
Evidence of this polarization is all around us. On February 1 of this year, Stanford's Law and Policy Lab issued a report on "Polarization, Academic Freedom, and Inclusion." The study begins as follows:
Intense political, social, cultural, and racial polarization compromise the mission of higher education to promote intellectually rigorous, open, inclusive inquiry; to train a diverse student population to work productively across difference in a pluralistic society; to produce cutting edge research; and to train leaders capable of creating innovative solutions to major social problems. Open, inclusive discourse among students and between students and faculty is particularly under threat as a result of self-censorship by students with certain viewpoints and identities, advocacy for suppression of ideas people find repugnant or disturbing, and administrative practices that undermine universities’ commitment to academic freedom. Faculty report similarly chilling effects as a result of the current climate. Although none of these may be caused by coercion in a formal legal sense, critical inquiry is nonetheless inhibited because of fears of criticism, ostracization, or sanctions.
As to legal education specifically, there are a number of factors increasing polarization inside law schools making it more difficult to break through the echo chamber. One of the the largest causes of this problem is the binary choice offered by the Federalist Society and the American Constitution Society. These two organizations, one conservative/libertarian, the other liberal/progressive, reflect the divisions in our larger society as well as our two-party system of politics. Although at the student level, these two organizations often work together to put on panels and debates, at the national level where it counts the most, both organizations put on highly partisan programs that increase polarization where the two sides barely speak to each other.
In 2022, four, count them four, Supreme Court justices attended the Federalist Society National Convention. This paragraph taken from a Bloomberg article is a tad chilling:
The Federalist Society’s Antonin Scalia Memorial Dinner held Thursday night in Washington’s Union Station attracted a crowd of hundreds, including Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch and Brett Kavanaugh.... “After 40 years, our successes have proliferated,” said Leonard Leo, the group’s longtime former executive vice president. Leo was an influential adviser to former President Trump on his three Supreme Court appointments, who were all present at the dinner.
Attendees gave a standing ovation when former Michigan Supreme Court Justice Stephen Markman praised Alito’s June 24 opinion in Dobbs v. Jackson that eliminated the constitutional abortion right.
On the other side, the American Constitution Society has hosted numerous justices at its national conventions, including Kagan, Stevens, Sotomayor and Ginsburg. To the best of my knowledge, in recent years no liberal justice has spoken at the Federalist Society National Convention and no conservative justice has spoken at the American Constitution Society's National Convention. In a sane world, it would be exactly the opposite. Are conservatives really going to learn from Thomas or Gorsuch sounding off about originalism and are liberals really going to learn anything from Sotomayor or Kagan sounding off about the importance of empathy in judging and how cases are not as easy as the formalists on the other side suggest?
A few years ago, I hosted a conference on the career of Justice Anthony Kennedy at my law school. I was fortunate to have a superstar lineup of both Fed Soc and ACS law profs as well as several former clerks of Justice Kennedy. The list included Eugene Volokh, Ilya Somin, Jonathan Adler, Mike Dorf, Pam Karlan, and Mark Tushnet, among many others. I asked the national leadership of both ACS and the Federalist Society to symbolically co-sponsor the event to demonstrate that civil discussions among people who strongly disagree with each other was still possible. Although ACS was willing, the Federalist Society said no because they had no role in planning the program. I told the leadership they could play in a role if they agreed to co-sponsor but the answer was still no.
Some will respond that both groups invite a few folks from the other side to their national conventions. For example, I was invited to Fed Soc this year for a panel on affirmative action. But these folks are usually a distinct minority and rarely make an appearance at the galas and other big celebrations. Moreover, my understanding is that both conventions are attended almost exclusively by folks whose values are consistent with the leadership of both organizations so that neither convention provides a good environment for across-the-aisle talk.
In addition to the polarization caused by Fed Soc and ACS students, professors, and judges generally staying in their own lanes, the unwillingness of law students (of all people) to hear from people with different views than their own is getting worse every year. At the University of California at Berkeley, nine student groups said they would not invite any speaker who supports Zionism (regardless of the topic of the event). At numerous law schools there have been controversies over who can speak, to whom, and under what conditions. Students retreating to their own corners is not good for legal education, the broader legal community, or society as a whole.
So, I have a few proposals. They are not likely to go very far but, as they say, nothing ventured, nothing gained.
1) Both Fed Soc and ACS should invite justices from the other side to speak at their national conventions, and those justices should show up. Symbolically, this intersection would be of great value and substantively it would be good for each group to pay close attention to how they are perceived by the other side and to hear arguments they do not normally hear. It would also be a positive development for the justices to be exposed to the different ideas and values held by folks who disagree with them.
2) The leadership at every school with Fed Soc and ACS chapters should strongly encourage and incentivize these groups to co-sponsor as many events as possible. We do this at Georgia State and the results are usually wonderful. Not only do students hear more varied arguments but they get to know and even like students in the other group. Such connections can have positive long-term effects.
3) Both groups should sponsor local and national events where they invite one or two people representing the other group to speak with opposing responses coming exclusively from the audiences. This would help people wrestle with opposing arguments in a direct way rather than through a third party.
4) Federal judges, especially the justices, should hire at least one law clerk every year with politics different from their own. I'll never forget my clerkship with a conservative, GOP judge who was genuinely interested in my views on the few highly political cases he faced while I was his clerk. He once told me that it was in those cases specifically where he liked me pushing him to make sure he was making the right decisions. Sadly, on both sides, that attitude is fading fast.
5) The leading legal blogs, including this one (speaking to you Mike) should reach out to folks on the other side and invite them to write posts with different perspectives than the blog usually offers. Years ago, I presented this idea in person to Eugene Volokh and Jack Balkin, who both run highly visible and successful blogs. They rejected the idea out-of-hand saying that legal bloggers do this now simply by responding to experts on other blogs. But that response missed the point of my idea. It is the sharing of space, both physical and virtual, among folks with different views that is important because being in the other side's house reduces both extremism and dogmatism.
Legal education is currently suffering from the extreme polarization haunting our country as a whole. We need to be proactive in fighting the temptation to lie in our own bunkers taking rhetorical pot shots at those who disagree with our core values. Only civil conversation, the sharing of space and food, and a willingness to be humble about our own views can lead us to a better place where hard issues aren't made to to look simple, where token presentation of opposite views is replaced by a genuine exchange of ideas, and most importantly, where our most influential and important judges stop being cheerleaders for either Fed Soc or ACS and role model how even our best and our brightest can learn and benefit from hearing how the other side views the complicated and controversial issues of our day.
We must learn to talk to each other better.