Law Professors, Legal Punditry, Donald Trump, and What's an Academic to Do?
By Eric Segall
I had an existential crisis in the Spring of 2012, just a few months before the hugely important Affordable Care Act case, NFIB v. Sebelius. After researching the issue for months, I reluctantly came to believe that Justice Elena Kagan had to recuse herself from the case. She was the United States Solicitor General when the challenges to the statute were being resolved by the lower courts. Her deputy Neil Katyal was in charge of the cases in the lower courts. A justice simply can't or shouldn't sit on a case she handled below.
Kagan said she isolated herself from all the litigation while she was the Solicitor General and I believed her, but so what? Why did she isolate herself from this one case (she recused in over two hundred other cases presumably because her office handled the litigation). In any event, I was convinced I was legally correct but it made me sad. I wanted the Affordable Care Act to be upheld and if she recused in what would likely be a 5-4 case along partisan lines the lower court decision the Court was reviewing would be upheld in a 4-4 tie. That lower court decision invalidated the law.
My friend Pete Dominck invited Dahlia Lithwick and me to be on his radio show to discuss the upcoming blockbuster case. I made my argument about recusal, which Dahlia expressly rejected. After the show was over, she generously asked me if I wanted to write up my recusal argument for SLATE, where she works.
Brief background: in 2012 I was finishing my first book and had written a bunch of law review articles and a few op-eds but I had a very marginal social media presence. I think it is fair to say (hopefully without too much of a humble brag) that I am much better known today in legal and non-legal circles than I was back then.
So I hung up the phone and this was what went through my mind: an article in SLATE probably would not matter much on the issue (a non-party did make a formal motion for Kagan to recuse). On the other hand, I had a firm grasp on the legal arguments and I had a feeling that enough folks read SLATE that conservatives opposed to the ACA might learn something from my piece. Although many had called for Justice Kagan's recusal before me, no liberal had taken that position, at least not publicly.
I thought deeply about this before deciding I'm a law professor, not a pundit or politician, and my job was to apply the law to the facts in the most honest way possible. So I accepted Dahlia's kind invitation and the piece is here. By the law professor standards at the time, the essay went kind of viral with numerous conservative commentators embracing my arguments and an extremely negative reply to my thesis in SLATE from a well-known liberal, the title of which was, "Debunking Eric Segall’s liberal arguments for a Kagan recusal in the health care case." SLATE then gave me an opportunity to reply so I did.
Eventually, I wrote on the issue for the Los Angeles Times, the University of Pennsylvania Law Review, and, to my lasting regret, the National Review. The title of the initial SLATE piece was: "A Liberal's Lament: Justice Kagan and Health Care." Needless to say, conservatives fighting to get the Court to declare the ACA unconstitutional were quite pleased. Professor Jonathan Adler linked to my initial SLATE piece on the libertarian blog the Volokh Conspiracy, writing, "Eric Segall, a self-described 'liberal constitutional law professor,' who believes the individual mandate is constitutional, argues in Slate that Justice Kagan should recuse herself in the individual mandate litigation."
Pretty much from that moment on I have had two related but different careers. I am a law professor whose first priorities are my students and my law school. I also write scholarly books and law review articles. But, since 2012, I also have devoted much of my time to this blog, Twitter/X, my podcast, other people's podcasts, appearing on radio and television, and writing non-scholarly pieces for places like The Daily Beast, SLATE, The Atlantic, The New York Review of Books, and numerous other newspapers and other non-legal outlets.
All of which brings us to present-day. Last week was probably the busiest of my career in terms of media appearances, interviews, and social media conversations due to the indictment of Donald Trump in Atlanta. As I prepared for all that, I started researching the federal officer removal statute and supremacy clause issues Mike wrote about here and here. We both also discussed the issues on the uber-nerdy constitutional law list serv Mike and I both participate in. This is what I found from my research, which may or may not be the same thing I wanted to say publicly:
In lay terms, both the removal statute and the doctrine of supremacy clause immunity require the defendant to have engaged in official conduct and, for removal, have a colorable federal defense defined quite loosely. Both issues will likely come down to whether Trump was engaged in official conduct ensuring the fairness of federal elections or whether he was a candidate trying to steal an election (or perhaps both). Were I writing a law review article on the subject, I would say these are issues of first impression, they impact our country tremendously, and my read of the law and facts is that Trump should lose but, of course, lower court judges and eventually SCOTUS may well come to a different conclusion. I expressed those thoughts publicly, which got me in trouble with some on the left who wanted no part of any uncertainty. The party line is Trump must and will lose these motions and why provide the other side with even the slightest ammunition to make their case stronger.
This pushback gave me significant pause. I was going to be on national television and national radio shows and podcasts, as well as talking to numerous reporters. Among many others, The Guardian, USA Today, The Hill, Reuters, and Talking Points Memo came calling. I say that not as a "look at me Louie" moment (really) but to demonstrate that whatever thoughts I had on these issues, they would end up in many different national media outlets.
All of which brings us to the central question I have been wrestling with for a long time: when legal academics with definite and discoverable political preferences leave the world of legal scholarship and enter the crazy world of social media, television, radio, blogging and podcasts, what is their appropriate role? Of course, one should never be insincere or write or say something they do not believe but in most litigated constitutional cases there is plenty of wiggle room to say a lot, a little, or nothing at all. For example, I could have said last week something like, "well Trump should easily lose on both issues because the law and facts are against him and here's why."
I agree with that sentence but it is not even close to the entire truth. For one thing, predicting what appellate judges and SCOTUS will do in legally easy cases with a liberal/progressive political valence is fraught with danger, given the 6-3 conservative court (not to mention that half of the active judges on the 11th Circuit were nominated by Donald Trump). Second, it is crucial that Trump be treated the same way we would want future Presidents to be treated, and the line between candidate and federal officer may well be blurrier than many people think. And, third, the reality is that these are all issues of first impression with enormous implications for our country and maybe we should just slow down and take some time before pronouncing that Trump should definitely lose on both removal and immunity.
But the media wait for no one. Once a legal academic decides to enter the fray, and assuming one wants to be successful in that fray, timing is of utmost importance. One needs to be fast and come up with sound bites that the public will respond to and other news outlets will repeat. That is just how to play that game--trust me. But that is hardly the job description I originally signed up for in 1991, which was to teach, write scholarly articles, and provide service to my school, the university, and my community.
But here's the rub. My ability to get others to recognize both my academic work and my punditry (there's nothing else to call a five-minute segment on CNN or a 1500-word essay in SLATE) absolutely depends today on full participation in non-legal media of all kinds. That reality may not be true for folks teaching at elite schools, who by virtue of their Ivy League credentials may be able to garner exposure in other ways (such as hobnobbing with other elites). But for those of us without those credentials teaching at less elite schools, the path to career success these days is through social media much more than through 30,000-word law review articles and even books (but of course one also must produce such traditional scholarship).
And that is the problem. My blog post here about the enormous costs of the Justice Scalia mythology garnered almost 21,000 views! I am confident that is more exposure than all of my 50+ law review articles written over 33 years combined. My prior op-eds in the New York Times, of course, garnered much more attention than that. And, my Twitter debates from 2012 through today have led to invitations that I never would have received were it not for the social media exposure.
So, what is a law professor to do? Although there is some movement, few promotion and tenure committees take these social media appearances seriously, but they are a gateway to true scholarly engagement (as I said above my Kagan social media essays resulted in an invitation to debate the great Sherrilyn Ifill on this issue in the Penn Law Review). But my social media engagements are in some important ways quite different from my academic work. For one thing, there usually is not time to fully engage opposing arguments (whereas in law reviews there are as many pages as one needs available). Additionally, the audience is of course much different, and reaching them requires different skills than writing scholarly books and articles. And third, as I mentioned earlier, the key to being successful at social media is to act quickly, decisively, and even controversially. None of those talents are needed for law review and scholarly success and, in fact, may be bad habits to pick up.
I do not pretend to have any meaningful answers to these questions but here are a few random and tentative thoughts. First, law professors do work in a profession where credentials matter. There can be no debate that the rise of the internet has been a great equalizer and that is a good thing. Second, I highly recommend substantial self-reflection if one's goal is to further their career through social media. The work is hard, time-consuming, and very different from normal scholarly enterprises where one has much more time to develop their ideas. And third, and this is a big one, if you intend to head down this road and want to succeed, you better be able to handle pressure. Media calls come in fast; the callers want you soon and do not give you much time to prepare. And a mistake on CNN or in SLATE or the New York Times may cause much more damage to your career than the same mistake made in a law review article or a book.
One last question that is raised by law professors being pundits. Should they say anything about their prior views on legal questions to their students who can discover those views in ten minutes with a Google search? I have wrestled with this question often, given my hyper-critical writings about the Supreme Court. In the age of Trump, this is even a larger problem. Dean Erwin Chemerinsky has written the following:
How do we teach the unique the events of the last year without sounding like we are against Trump? We’ve never seen anything like what occurred on January 6th. We’ve never seen anything like the attempt to use the John Eastman memo to invalidate an election. We’ve never seen in this country’s history a candidate who lost the presidency, continuing to claim victory, let alone the insurrection on January 6th. And yet as we teach all of that, does it not sound like we’re taking a political position and whatever students we have who voted for Donald Trump would see us as just expressing sour grapes about his views. How do we teach that material?
Prior to 2012, very few students knew my work. Since 2012, many of them Google me like lawyers who research the judges assigned their cases. This raises several issues. If I articulate my prior views on major topics in class, will that stifle conversation? Also, on many issues, my progressive politics are clearly on display; will that make conservative students less likely to speak up? And, if I don't disclose the positions that I write about on social media (most students do not have time for my academic writings), will the students who have read my work be confused by my devil's advocate approach to class?
I have erred on the side of transparency, so I disclose my relevant views in class but I also tell the students that they will do best in my eyes when they argue with me on issues where my views are well-known and hard-wired. I hope that is an acceptable answer but, like almost of the questions raised by this post, I really do not know.