Many presidents of universities, including my own, have committed their institutions to supporting the Grand Coalition on Climate Change. The founding statement of the Coalition criticizes President’s Trump decision to pull out of the Paris Agreement on Climate Change and offers support for various policies by state and local governments to pursue the objectives of that agreement.
It is a serious mistake for universities as institutions to criticize or support controversial political initiatives, let alone become part of political coalitions. Universities must stay of out of politics and refrain from policy endorsements that are by their nature political. By maintaining their institutional neutrality they can best foster debate and further the progress of knowledge about controversial issues of the day. Universities are brokers of knowledge. To be honest brokers, they must eschew politics.
Wading into politics imposes two kinds of costs. The first is a chilling effect on debate and free inquiry within the university.
The most comprehensive study of the ideology in the legal profession ever has just been published. It confirms what most people have already intuited: lawyers as a whole lean strongly to the left. Within the profession, a few characteristics predict that a lawyer will be even farther left than the median. Females and government attorneys are even more liberal, and no category is farther to the left than law professors. So much for diversity in legal education.
But what is most interesting about the study was its comparison of the ideology of lawyers with that of other key professions. Academics as a whole are substantially more left-wing than lawyers, and journalists in the print media are even slightly more left-wing than academics. Thus, we now know that there is a shared ideology of what we might call the scribal class – those who seek to alter the world by their use of information and rhetoric.
This scribal class wields enormous political power.
It has been reported that this term is shaping up to be one of the most liberal at the Supreme Court since 1969. Another report by Eric Posner shows that the justices appointed by Republican Presidents are agreeing less among themselves, while the justices appointed by Democratic Presidents remain a united bloc.
We should be cautious about reading this information as a trend. The case mix changes from year to year and thus there can be expected to be overall ideological variation from year to year depending on that mix and the justices’ idiosyncratic views. But there is no doubt that the country is moving left at least on social issues and the oldest adage about the Court’s decision-making is that it follows the election returns. Certainly, the expected creation of a right to same-sex marriage would be unimaginable without the rapid and dramatic shift in public opinion on the issue.
The more interesting question is why Republican justices tend to fracture while the Democrats stay united. The first reason is that Supreme Court opinions implicate not only ideology, but jurisprudential methodology and Republicans are more divided on jurisprudence.
There are three paradigmatic types of Supreme Court justices—the jurisprude, the ideologue, and the partisan. While no actual Supreme Court justice perfectly represents the ideal, some present pretty close approximations. It is hard to understand or predict the results of Supreme Court cases without determining how a particular justice fits into these types.
The jurisprude is a justice committed to a particular method of judging rather than an particular set of results. On the current Court the examples par excellence are Justices Antonin Scalia and Clarence Thomas who are committed to originalism. From the past Justice Hugo Black was a textualist and Felix Frankfurter, his sparring partner, advocated an historical jurisprudence. These jurisprudential commitments frequently lead to unusual ideological results. Justice Scalia (and Justice Thomas as well) vote for criminal defendants based on their close readings of the language of the Constitution, like the Confrontation Clause. For originalist reasons, Justice Thomas is no friend of preemption claims with the result that in his opinions businesses often lose to state tort law and regulation. Despite being a New Deal populist as a Senator, Black as a Justice wanted to enforce the Contract Clause against debtors.
The ideologue is a justice who is strongly right or left of center as that is defined in his day and votes that way.
I missed this article – Originalists, Politics, and Criminal Law on the Rehnquist Court by Rachel Barkow – when it came out, but I thought this part of the abstract was interesting: By reviewing all of the Rehnquist Court's criminal opinions in argued cases during the ten-year period from the October 1994 Term through the 2003 Term, this Article shows that the Justices' votes in criminal cases do not fit neatly into the attitudinal model. [Mike Rappaport insertion: the attitudinal model holds that the votes of the Justices are based on their political views, not the law.] While a review of…