Lawyers for Radical Change The legal profession, once a guardian of republican government, is now a force for social upheaval. John O. McGinnis
https://www.city-journal.org/lawyers-for-radical-change
The transformation of the legal profession marks a fundamental change in American democracy. In the republic’s early days, lawyers provided ballast for stability and served as an anchor against excessive populism. The judiciary’s sober attachment to formal order was a primary reason for giving it the power to review the constitutionality of legislation. Law was the profession most likely to preserve the enduring framework of republican government against the mutable passions of the hour.
Nowadays, lawyers are a force for often-radical progressive change. Nothing symbolizes that shift better than the American Bar Association. Once an embodiment of conservatism, it has been captured by the Left. Its resolutions at its annual meeting constitute a wish list of Democratic Party proposals. It also deploys its influence in the accreditation process of law schools to make them even more monolithically left-wing than they already are.
The reasons for the shift lie, at least in part, in the reorientation of lawyers’ interests. Since the birth of the modern regulatory state, lawyers are no longer primarily the allies of commercial classes, as they were in the early republic, but instead the technocrats and enablers of regulation and redistribution. The more the nation intervenes in economic affairs to regulate and redistribute, the greater slice of compliance costs and transfer payments lawyers can expect to receive. Thus, they cannot be counted on as supporters of property rights or even of a stable rule of law. Their interest lies frequently in dynamic forms of legal transformation and the uncertainty they bring. Far from supporting a sound, established social order, they are likely to seek to undermine it. Only an ideological attachment to older forms of legal orders, like that which Federalist Society members manifest, can call lawyers back to the essential role they play in the civic life of our republic.
In Democracy in America, Alexis de Tocqueville admired the American experiment in republicanism but foresaw several dangers. Democracy could turn excessively populist, he warned, as demagogues successfully appealed to the ill-considered whims of an excitable public. Democratic mutability would thereby endanger republican stability. By operating on the principle of equality in the political sphere, democracy also tends to impose equality throughout society, depressing excellence everywhere, including in commerce and in the culture. That kind of egalitarianism can engender mediocrity, not meritocracy.
Lawyers once were an important bulwark against such dangers. According to Tocqueville, the importance of law in a republic made lawyers peculiarly powerful in America. When the nobility and princes are excluded from government, lawyers become the most effective governing class. Indeed, they are the closest group that America has to an aristocracy, albeit one of talent, not birth.
Tocqueville further believed that the nature of the profession makes lawyers’ power a beneficent force in the republic. Their devotion to law gives them the inclination to resist popular passions, and even a bit of contempt for the vacillations of democracy. The formal structure of law encourages an abiding suspicion of innovations that would disturb it. Tocqueville praised, above all, the disposition of character that comes naturally, he believed, from the legal profession: “Men who have made a special study of the laws derive from this occupation certain habits of order, a taste for formalities, and a kind of instinctive regard for the regular connection of ideas, which naturally render them very hostile to the revolutionary spirit and unreflecting passions of the multitude.” Tocqueville was not so naive as to assume that every attorney has such qualities. Lawyers are prominent in every kind of political movement, after all, including revolutionary ones. But respect for tradition and resistance to popular fads are important general tendencies.
As Gordon Wood writes in Power and Liberty, his superb book on early American constitutionalism, Tocqueville saw judges’ power to void unconstitutional statutes as another restraint on democratic excess. In Federalist No. 78, the famous essay defending judicial review, Alexander Hamilton justified the power of the federal judiciary by pointing to the sound judgment and acumen of the lawyers who would staff it. In response to claims that the judiciary would consolidate power in the federal government against the plan of the Constitution, Hamilton conceded that judicial review would serve the republic only if it respected stable traditions of legal interpretation. “To avoid an arbitrary discretion in the courts,” Hamilton observed, “it is indispensable that [judges] should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” And those capable of being judges will be “the few”—an allusion from political theory to elites such as aristocrats—contrasted with “the many.” Hamilton had confidence in finding lawyers “who unite the requisite integrity with the requisite knowledge.”
Hamilton’s defense of judicial review by reference to the conservative tendencies and meritocratic excellence of lawyers was vindicated in the early republic. The judiciary resisted the most populist impulses of the Democratic-Republican Party when it took over the presidency and Congress after the 1800 election. Though they made enough appointments to establish a Supreme Court majority, three successive Democratic-Republican presidents—Thomas Jefferson, James Madison, and James Monroe—did not alter its fundamental character.
Despite Democratic-Republican attacks on the constitutionality of the Bank of the United States—itself a stabilizing institution for the fledgling networks of commerce in America—the Supreme Court upheld it unanimously in McCulloch v. Maryland. Jefferson blamed the Court’s intransigence on the magical powers of his cousin Chief Justice John Marshall, but it was the nature of the bar in the early republic that ultimately safeguarded the judiciary’s constitutional role. The justices were prudent men who rose to prominence from a legal practice dependent on arbitrating the private law among merchants and thus were well disposed to protecting the commercial republic that the Constitution established.
Today’s bar looks nothing like that of the early republic. Far from being a conservative influence, lawyers are more liberal than the median voter. And those who train the next generation of lawyers, the law professors, are overwhelmingly left-wing, favoring all sorts of foolish innovations—from abolition of prisons to putting the Federal Reserve in charge of setting prices for core goods.
The rise of the regulatory state is partly to blame. At the time of the Constitution, lawyers obtained their fees largely from private transactions. They negotiated and litigated contracts, conveyed property, and drew up trusts. But since the New Deal, much of law has become administrative law because the modern state is the administrative state. Government lawyers’ practice consists in finding new ways to regulate. For private lawyers, it consists in finding new ways of complying with or avoiding regulation. Lawyers thus gain with any increase in the scope of government agencies and complexity of the related procedures.
The other primary factor behind the bar’s transformation has been the rise of living constitutionalism and rights expansion, beginning in the 1960s. Under living constitutionalism, lawyers and judges are not simply servants of the law but potentially tribunes of the people, because they can choose to create new rights and discard others. In a legal world without the formal anchoring in text and precedents that characterized the lawyer’s craft of the past, innovation and, indeed, radicalism are prized as sources of power. Lawyers become no longer the rampart of the republic but the disrupter of its order.
The American Bar Association’s history reflects the lurch to the left. The ABA began in the 1870s. Until 1938, its positions on law and politics were conservative. It favored formalism in law and free enterprise in economics. Its members overwhelmingly opposed Franklin Roosevelt’s scheme to pack the Supreme Court to assure approval of New Deal legislation. The ABA argued that such a move threatened republican government; the group garnered both praise and blame for the plan’s eventual defeat.
“Since the New Deal, much of law has become administrative law because the modern state is the administrative state.”
But as the regulatory state entrenched itself after the New Deal, the ABA grew considerably less conservative. By the era of President Lyndon Johnson’s Great Society and the rise of the rights jurisprudence of the 1960s, it was a more openly left-wing organization. The watershed public moment marking this shift was the decision in 1987 by four members of its Standing Committee on the Federal Judiciary to rate Robert Bork “not qualified” for the Supreme Court. The committee’s remit was to evaluate nominees for judgeships based on their professional qualifications. Bork had been solicitor general of the United States, a professor at Yale Law School, and the author of the most influential book on antitrust law in the history of the subject. The judgment of the committee members represented an ideological assassination under the veil of professional assessment. And it may have proved decisive, because Bork’s opponents trumpeted it as a politically neutral reason to oppose his nomination. Subsequently, studies have shown that the Standing Committee has rated Republican lower-court nominees less highly than Democratic nominees with similar qualifications. For instance, it rated as barely qualified Professors Richard Posner and Frank Easterbrook. When they took the bench, however, their colleagues on other circuit courts cited them four standard deviations more often than they did the average judge.
By the 1990s, the ABA had begun publicly to endorse left-liberal positions. The most famous resolution was its 1990 affirmation of a constitutional right to abortion. That approbation of the 1973 Roe v. Wade decision showed how far lawyers had come from a conservatism based on legal formality because the abortion decision was notoriously unmoored from the text of the Constitution or any substantial precedent. As John Hart Ely, a liberal law professor at Harvard and supporter of abortion rights, once observed: “Roe is not constitutional law and gives almost no sense of an obligation to be so.”
Since then, the ABA’s resolutions have ranged even more widely, but consistently leftward. It has recently passed resolutions, for example, to provide voting rights to those incarcerated for any crime, to prohibit states from preventing persons who are biologically male from competing in women’s sports at schools, and to forgive student debt. It has called for a minimum wage, too, though lawyers have no more expertise on this and many other subjects of resolutions than any other group of citizens. As the Anglican Church was once the Tory Party at prayer, the ABA is the Democratic Party at the bar.
The ABA helps reinforce and expand the Left’s power chiefly through its influence in accrediting law schools. The ABA’s involvement in the accreditation process initially focused on the issue of greatest concern to lawyers: making sure that they were paid comparably with doctors! Thus, the ABA imposed on law schools limits on how many hours law professors could teach. Two decades ago, the Justice Department upended this cozy arrangement, seeing it as facilitating a cartel that drove up prices for students. As part of a consent decree, the ABA agreed not to impose requirements that affected salaries and certain other economic matters. The result also shifted proposals for accreditation to the Council on Legal Education. But the council’s independence from the ABA is attenuated. Its head is approved by the ABA president, and most of its members are ABA lawyers, with a strong representation of professors. The ABA can still reject the accreditation standards. The consent decree has not prevented ABA influence, in other words, but merely redirected it.
Now that the lawyers’ guild cannot openly mandate policies to advance its members’ immediate economic interests, it has switched to imposing requirements that reflect the predominant ideology of the profession. Just this year, the council has strengthened its requirements for race- and ethnic-based hiring of faculty, making clear that law schools may henceforth be compelled to take such considerations into account, unless they are in jurisdictions that explicitly forbid such hiring. The requirement offers fresh confirmation of how far the organized bar will go in using its influence for a progressive-favored cause. Even under current precedent that the Supreme Court will reconsider next year, the requirement would be illegal: the Court has approved racial preferences for student admissions but not for faculty hiring. And regardless of the standard’s legality, it is a striking abuse of political power for an accreditor to mandate a policy nationwide that voters have rejected in almost every statewide referendum on racial and gender preferences.
The rule will be almost certain to push law schools even further left. A recent study by Harvard and University of Chicago researchers found that many law schools currently lacked any substantial representation of conservatives and that professors from racial and ethnic minority backgrounds (as well as female professors) tended to be more left-wing than the median professor. Preferences in hiring would thus likely reduce law schools’ already-limited ideological diversity.
The new standards also require that a law school shall provide training and education to law students on bias, cross-cultural competency, and racism at the start of the program of legal education, and at least once again before graduation. This requirement breaks new ground by telling law schools that a social problem is so important that it must be addressed, even if not directly related to the subject of law. As a group of senior Yale law professors, not one a conservative, observed about the reality of this standard: “The new proposed requirements . . . attempt to institutionalize dogma, mandating instruction in matters that are unrelated to any distinctively legal skill.” Law schools already have a woke atmosphere because they are part of universities. The ABA is helping to ensure that they become even more of an ideological bubble.
Beyond the baleful influence of the national organized bar, associations of lawyers at the state level also pressure society leftward. The most powerful mechanism for doing so: “Missouri plans” for the appointment of state judges (taking their name from a reform that originated in that state in 1940). Many states with such plans neither replicate the federal structure of executive nomination and legislative confirmation nor permit direct election of judges. The argument against such political processes is that they allow special interests to skew nominations. Instead, Missouri plans require the state’s executive to nominate judges from a list drawn up by a special commission. Lawyers have a privileged position on those commissions, with guaranteed seats for the bar. Not surprisingly, state supreme court justices selected under such plans favor the interests of lawyers. For instance, they have often been hostile to tort reform, which tends to reduce the income of plaintiff lawyers. And in keeping with the enthusiasm for creating new rights that characterizes the modern bar, justices selected under these plans are often sympathetic to living constitutionalism. Missouri plans may reduce the power of some special interests in the nomination process, but they embed one special interest—lawyers—that wants a judiciary that serves their own financial and ideological interests.
The ABA’s leftward movement has spurred the growth of the Federalist Society. Though conservatives constitute only a minority of lawyers, their abandonment by the ABA was enough to attract more than 80,000 to join the Federalist Society. The organization is dedicated to promoting the jurisprudence of originalism—the view that the Constitution should be interpreted according to the meaning at the time it was enacted. While the Society does not lobby for the appointment of originalist judges, its network both refines the arguments for originalism and brings the best exponents to the attention of the relevant decision-makers in the White House and Congress. Without the Federalist Society, we would not have an originalist-leaning Supreme Court today, making the organization the most successful and important new civic organization in America of the last five decades.
Its success enrages the Left, undermining its near-monopoly of nonpartisan institutions that engage in legal and policy discourse. The Left dominates most of the commanding heights that influence the nation’s political agenda—universities, the media and entertainment world, philanthropies, and so on. It would dominate the legal sphere even more but for the Federalist Society.
If, largely thanks to the Federalist Society’s efforts, the Supreme Court is transformed, it may slowly change the legal profession as a whole. As the Supreme Court decides cases based on formal rules rather than policy perspectives or social visions, lawyers will again find themselves more concerned with formal order; after all, lawyers must follow, to some extent, the tribunals before which they practice. And if the Court’s jurisprudence helps bring about a more restrained federal government and regulatory state, lawyers would no longer see their interests so tied to increasing regulation. The bar may then return to the characteristic lawyerly virtues of prudence and skepticism about rash innovation that Tocqueville celebrated. Lawyers as a class would then cease to be the sappers of republican stability and once again serve as its shields.
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