Brian Anderson: Welcome back to the 10 Blocks podcast. This is Brian Anderson, the editor of City Journal. Joining me on today’s show is a frequent guest, John McGinnis. He’s the George Dix professor in constitutional law at Northwestern University law school, and he’s a contributing editor of City Journal. He’s written for many publications, including the Wall Street Journal, Los Angeles Times, New York Post, and others, and he writes regularly also at Law and Liberty, the website.
He’s the author of two books, Accelerating Democracy: Transforming Governance Through Technology, and Originalism and the Good Constitution.
Today we’re going to be discussing legal topics, his essay, “Law Betrayed,” which appeared in the most recent issue of City Journal and describes the influence of identity politics on American legal education, the growing influence of identity politics.
We’ll also get John’s perspective on the momentous Supreme Court ruling in Students for Fair Admissions v. Harvard, which has come down in recent weeks, as everyone knows.
So John, as always, thanks for joining us.
John McGinnis: Delighted to be here, Brian.
Brian Anderson: So to discuss your story first, “Law Betrayed,” law professors are known, generally speaking, to be more liberal than the general public, but traditionally, they took pride in fostering the open inquiry and debate that one would think is essential to a rigorous legal education.
With the rise in recent years of a ferocious identity politics, however, law schools have become much more monolithically left wing, so ideas and legal theories that run counter to progressive dogma are increasingly excluded from curricula, and professors and students who espouse these ideas are finding themselves shunned.
So I wonder, what key forces have contributed to this shift in law schools, and what’s your own assessment of it?
John McGinnis: I think you’re absolutely right. The key change has been the composition of the faculty, and the composition of the student body. When I went into law teaching, people were certainly on the liberal side of the spectrum, but they were in some sense, traditional liberals, who very much respected, indeed vigorously wanted to protect freedom of speech, not only in the sense of constitutional value, but in a sense of a culture of inquiry, which is really at the heart of a university, and particularly at the heart of a legal system.
They really prided themselves on that, and they demonstrated that in the way they conducted their classrooms through the Socratic method in which students had to defend different positions on controversial cases, even positions that they might not take themselves.
What has happened, is we’ve seen a change, I think, in the faculty, and partly, that is also because of the rise of identity politics, racial, and gender identification are very important now, in faculty hiring, and there have been studies that have shown that minority, and women are to the left, even of the liberal democratic median, white law professors, so that’s one aspect to it.
Another, I think, is the students who themselves I think have become less tolerant. Now, that doesn’t mean that majority are intolerant, but a strong minority can make life unpleasant, and the easier way for both careerist reasons, and just to have an easier life, while the stressful time of being at law school, is not to put one’s head above the parapet, and that allows the more radical students to dominate the atmosphere, and that leads actually to some traditional liberal faculty of being themselves wary of bringing up things in the classroom.
And so, those are the, I think, most important contributing factors, and this was all accelerated after the George Floyd riots, with the idea that systematic racism was really at the cause of all America’s evils.
And that meant that, not only courses that taught about race were monolithically left, since everything affects race, that has an effect on almost all courses according to this idea of systematic racism. And so, I think that was the final propellant to the state we’re in today, a state that results in, I think, a much less vigorous contestation of important ideas, and it’s demonstrated, I think, most dramatically, after the Dobbs decision were all sorts of panels at my law school, and the most important professional organization of law professors, didn’t have any defender of Dobbs. This is the most important decision about fundamental rights in the generation, and yet it was impossible to debate it—
Brian Anderson: Just completely monolithic, the discussion?
John McGinnis: Yes, at least unofficially. Obviously, not with organizations like the Federalist Society, organizations, that are devoted to debate, or right-leaning, but what was extraordinary were panels at the Association of American Law Schools, which is the organization of law schools, there was a panel with many, many discussants, where there was not one defender.
And when someone was asked about that, they said, “Well, of course, maybe, that’s a good thing, because we’re right.” And so, that’s a sense that we are in the possession of the truth, and error has no rights, and that’s completely destructive to a legal system, because of course, we debate all the time. It’s not obvious what laws mean, or how we should approach legal meaning. That’s what is debated all the time, or should be debated in law schools, and this really shuts that debate down, when you feel that you are in possession of the truth, and others can’t contest you.
Brian Anderson: It’s been a long-standing complaint of conservative scholars, and conservative public intellectuals that the American university is too ideologically left-leaning, or far-left, that there’s a uniformity of views on campus, but your argument in this essay is that this is a particular problem for law schools, that has consequences that spill beyond the law school itself.
So I wonder what you mean by that. Why is it so important to society as a whole? And you’ve started to address this in your previous comment. What is it about the role of law in a democratic society, that makes viewpoint pluralism more important?
John McGinnis: Well, I think it’s easy to compare it, for instance, to English departments. If they go completely woke, I mean, it’s very costly. It’s costly to people’s understanding of literature, but what happens is that its somewhat self-limiting. If they can’t stir people’s souls, people, students have been going elsewhere.
But that’s not true in law, we need lawyers for society, and particularly American society needs lawyers. Tocqueville thought they were most important profession, because important issues in our republic end up in court, and they’re contested in court, and to get the best contestation one needs a pluralist views, and that begins at law school.
One way of thinking, of course, about law school, is that it creates the lawyer for much of the rest of their life, and in one way, many, I think, of our Supreme Court justices are reflecting some of the ideas they had at law school, that were dominant at their time in law school.
And so, if you don’t have a process in which you can inquire, and come to a view about what are the good ideas, you’re going to get a very etiolated legal discussion, and that’s a real concern.
It also means that the law schools will not be serving their students, also, very well, because when they come to make legal arguments, they won’t really understand how to respond to them. In some sense, they’re doing a disservice even to the left liberal students.
But I want to say that’s not the only disservice. The disservice is beyond disabling students by not giving them different kinds of arguments. The culture of intolerance, there’s no doubt is moving to our law firms.
Paul Clement, the premier Supreme Court advocate of his day, I think he’s argued almost 100 cases on the court, after his victory in the Bruen case, a case about allowing guns to be carried outside homes, was told that he had to give up his client, this was at Kirkland Ellis, or leave the firm, and that’s obviously costly to Kirkland Ellis to lose such a Supreme Court advocate.
But one of the reasons for that, as I understand it, was they were afraid of his effect on recruitment. To have someone like this on the firm, which you might have thought in the past, would’ve been a marquee partner, who people were eager to join, was just too much for some of the left liberal students they wanted.
And so, that shows how this intolerant atmosphere at law school, where there’s not a willingness, as lawyers have had in the past, to take all sides with plausible legal arguments, is coming into our law firms.
So that itself will have effects, because law firms not only make arguments for paying clients, they also represent people pro bono. And it’s now almost impossible, as I understand it, at some of the larger law firms, to represent certain kinds of interests, because again, the law firms are, I think, fearful of how it will disturb the market for their associates.
And then, finally, I think one of the consequences, one of the knock-on consequences, is it’s very bad for conservative students, which conservatives have traditionally been an anchor of arguing for neutral principles, and the rule of law.
For the first time in my experience, we now have conservatives coming up, and saying, “Well, that’s really not a good idea. We should actually have result-oriented law. We should get a series of results, and figure out how we can argue for it, rather than look to the meaning of statutes, and the constitution.”
And I think that’s also a consequence of what they’ve experienced in law schools. It’s very hard to argue they should be following neutral principles, when they observe the very race-based admissions, discrimination against conservative professors, a monolithic left-wing atmosphere. It seems a mug’s game to them to support these essential rule of law values, and that’s really costly to society.
Brian Anderson: You just mentioned racial preferences. They’ve long influenced law school admissions with many schools accepting minority applicants at a higher rate than their academic scores would predict, but the Supreme Court ruled last month, in Students for Fair Admissions v. Harvard, which I mentioned at the outset, that the use of race in determining university admissions is now unconstitutional. The court’s decision in this case proved, as one would expect, pretty divisive. How do you, as a legal scholar, evaluate the ruling? Does anything stand out to you in the concurring, or dissenting opinion?
John McGinnis: Well, so one thing I would say is, it’s much less divisive in the American public than in the elites.
Brian Anderson: Yeah, For sure.
John McGinnis: In fact, it does seem to have a very substantial support, which I think is important to think about how it will have effects going forward.
So you asked me about the concurring opinion, so I think, the dissenting opinion, I think what’s actually striking is some of the dissenting opinions, which really, just to back up for a moment, before this decision race was allowed, but only make sure the argument was so only so long as it wasn’t a quota, and only so long as it was to add diversity to the class, so that everyone would learn more from having students of diverse racial groups.
The Supreme Court struck that down saying, I think, essentially, that that was ultimately incoherent, because admission is a zero-sum game, you actually were harming some people, and that even diversity led to stereotyping, because there’s no reason to believe that all blacks, or all Hispanics think the same, and some of them might think rather like they’re white students, and yet would still get a plus factor under diversity.
But what’s striking, I think, about the dissenting opinions is how they even give up on that limited use of race preferences, certainly, in Jackson’s opinion, and to some extent in Sotomayor’s opinion, the argument is not for diversity, but the argument is for social justification, and rectification, that in fact, it’s just the fact that different races participate in become lawyers, and have different results, and various aspects of social life.
That’s a justification for preferences. And that justification, of course, it means that racial preferences are in some sense, illimitable, because as someone like Thomas Sowell has shown, there’s no society in the world where different racial, and ethnic groups are represented similarly in various elite groups in society.
So that would mean, according to the dissent opinions, that universities will be empowered, and I think governments would be empowered to manage the proportions, the right proportions of race, would be a tremendous increase in the power of social engineering on one of the most divisive areas of life, potentially divisive areas of life, choosing people by race.
So what I thought was extraordinary about, I wasn’t surprised by the decision in the case, but I was surprised by the dissents. The dissents, I think in that sense are more honest, because I don’t think universities have been really following, using race at the margin, and I think, in that sense, they’re more honest, but it’s striking the degree to which they will allow social engineering of race on behalf of, in some sense, proportional representation.
Brian Anderson: I wonder, John, clearly universities, many of them are not going to want to comply with the court’s decision. The law now prevents schools from explicitly factoring race into admission decisions, but I wonder what’s your view about how schools might try to get around this new court decision?
John McGinnis: Well, I think they’re going to have a dilemma here, because one way, and it’s been talked about in the law school context, is we should get rid of the LSAT, and the reason for that is different groups score, on average, quite substantially different. I think that’s around the standard deviation difference between African-American average, and the white average, for instance, was a very large amount.
So that’s an idea, but the difficulty with that is, that will make it harder to choose a class that’s talented for all races, because we won’t be able to measure skills. We’re throwing out very important information, so I don’t think law schools ultimately can do that.
And particularly law schools are going to have trouble doing that, because undergraduate institutions could admit people of varying ability, and they can go off, and do very different things.
But law schools, the first year, everyone’s in the same class, and having people of wildly different abilities is a real problem for a teacher, and it’s a real problem not only for the students who are on the weaker end, but it’s a problem for the students on the upper end, because it’s difficult to teach.
So I think it’s going to be difficult for law schools at least, to replicate the classes, and it’s been the case where in Michigan, and California, the proportions of races have changed, I think, even more dramatic, now, with the federal law, because I think, in places for instance, like California, it was unlikely that the courts, because they’re quite liberal in California, the state courts were going to police this, but I think with the judiciary that we have now, I think we’re likely to see some follow-on lawsuits, if law schools, or indeed, universities try to do an end run around this.
I also think it’d be a terrible thing if they do an end run, because it’ll make the schools less meritocratic, even without respect to race, because they’ll get rid of all the useful signals to determine a class that is as good as they can get meritocratic.
But also, it will really do very little, and that will do very little for even their ideas of social justice. It will have a continuing, therefore, mismatch of people going to different schools, and therefore less good results on the bar exam, but a less good legal education, and that cannot be good, even for those who have ideals of social justice, because they often have come through the courts, and they come through the courts with people learning the best arguments, and the best arguments in response to the arguments against them.
So I think, in some sense, it’ll be self-defeating if schools go down that road. Some of them surely will try, but I think they’re going to have a harder time, particularly at law school, than some might suspect.
Brian Anderson: Well, thank you very much for that walkthrough, John. Don’t forget to check out John McGinnis’s work on the City Journal website, that is at www.city-journal.org. We’ll link to his author page in the description. You can also find City Journal on Twitter @CityJournal, and on Instagram @cityjournal_mi.
If you like what you’ve heard on today’s podcast, please give us a nice rating on iTunes, and John McGinnis, always great to have you on the program.