The Takeover of America’s Legal System

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The adversarial legal system—in which both sides of a dispute are represented vigorously by attorneys with a vested interest in winning—is at the heart of the American constitutional order. Since time immemorial, law schools have tried to prepare their students to take part in that system.

Not so much anymore. Now, the politicization and tribalism of campus life have crowded out old-fashioned expectations about justice and neutrality. The imperatives of race, gender and identity are more important to more and more law students than due process, the presumption of innocence, and all the norms and values at the foundation of what we think of as the rule of law.

Critics of those values are nothing new, of course, and certainly they are not new at elite law schools. Critical race theory, as it came to be called in the 1980s, began as a critique of neutral principles of justice. The argument went like this: Since the United States was systemically racist—since racism was baked into the country’s political, legal, economic and cultural institutions—neutrality, the conviction that the system should not seek to benefit any one group, camouflaged and even compounded that racism. The only way to undo it was to abandon all pretense of neutrality and to be unneutral. It was to tip the scales in favor of those who never had a fair shake to start with.

But critical race theory, until quite recently, only had so much purchase in legal academia. The ideas of its founders—figures like Derrick Bell, Alan David Freeman, and Kimberlé Crenshaw—tended to have less influence on the law than on college students, who by 2015 seemed significantly less liberal (“small L”) than they used to be. There was the Yale Halloween costume kerfuffle. The University of Missouri president being forced out. Students at Evergreen State patrolling campus with baseball bats, eyes peeled for thought criminals.

At first, the conventional wisdom held that this was “just a few college kids”—a few spoiled snowflakes—who would “grow out of it” when they reached the real world and became serious people. That did not happen. Instead, the undergraduates clung to their ideas about justice and injustice. They became medical students and law students. Then 2020 happened.

All of sudden, critical race theory was more than mainstream in America’s law schools. It was mandatory.

Starting this Fall, Georgetown Law School will require all students to take a class “on the importance of questioning the law’s neutrality” and assessing its “differential effects on subordinated groups,” according to university documents obtained by Common Sense. UC Irvine School of Law, University of Southern California Gould School of Law, Yeshiva University’s Cardozo School of Law, and Boston College Law School have implemented similar requirements. Other law schools are considering them.

As of last month, the American Bar Association is requiring all accredited law schools to “provide education to law students on bias, cross-cultural competency, and racism,” both at the start of law school and “at least once again before graduation.” That’s in addition to a mandatory legal ethics class, which must now instruct students that they have a duty as lawyers to “eliminate racism.” (The American Bar Association, which accredits almost every law school in the United States, voted 348 to 17 to adopt the new standard.)

Trial verdicts that do not jibe with the new politics are seen as signs of an inextricable hate—and an illegitimate legal order. At the Santa Clara University School of Law, administrators emailed students that the acquittal of Kyle Rittenhouse—the 17-year-old who killed two men and wounded another during a riot, in Kenosha, Wisconsin—was “further evidence of the persistent racial injustice and systemic racism within our criminal justice system.” At UC Irvine, the university’s chief diversity officer emailed students that the acquittal “conveys a chilling message: Neither Black lives nor those of their allies’ matter.” {snip}

Professors say it is harder to lecture about cases in which accused rapists are acquitted, or a police officer is found not guilty of abusing his authority. One criminal law professor at a top law school told me he’s even stopped teaching theories of punishment because of how negatively students react to retributivism—the view that punishment is justified because criminals deserve to suffer.

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Nadine Strossen, the first woman to head the American Civil Liberties Union and a professor at New York Law School, told me: “I massively self-censor. I assume that every single thing that is said, every facial gesture, is going to be recorded and potentially disseminated to the entire world. I feel as if I am operating in a panopticon.”

This has all come as a shock to many law professors, who had long assumed that law schools wouldn’t cave to the new orthodoxy.

At a Heterodox Academy panel discussion in December 2020, Harvard Law School Professor Randall Kennedy said that, until recently, he’d thought that fears of law schools becoming illiberal—shutting down unpopular views or voices—had been overblown. “I’ve changed my mind,” said Kennedy, who, in 2013, published a book called “For Discrimination: Race, Affirmative Action, and the Law.” “I think that there really is a big problem.”

The problem has come not just from students, but from administrators, who often foment the forces they capitulate to. Administrators now outnumber faculty at some universities—Yale employs 5,066 administrators and just 4,937 professors—and law schools haven’t been spared the bloat. Several law professors bemoaned the proliferation of diversity, equity, and inclusion offices, which, they said, tend to validate student grievances and encourage censorship.

The distinction between DEI and the rest of the administration is often wafer thin. At Yale Law School, the Office of Student Affairs told students in an email last week that they could “swing by” the office to grab a “Critical Race Theory T-Shirt!” The T-shirt repeated the phrase “reparations & prison abolition” five times, Bart Simpson-style, before delivering the kicker: “critical race theory & yale law school.”

Law school deans have further entrenched this culture. In 2020, 176 of them petitioned the American Bar Association to require “education around bias, cultural competence, and anti-racism” at all accredited law schools, which led to the new ABA standards this February.

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Those students and organizations who do dissent often encounter a tsunami of hate. When members of Northwestern University Pritzker School of Law’s Federalist Society chapter invited the conservative writer Josh Hammer to campus in October 2021, the law school’s all-student listserv lit up with invective.

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That was nothing compared to what happened at Yale Law School earlier this month, when the school’s chapter of the Federalist Society hosted a bipartisan panel on civil liberties. More than 100 law students disrupted the event, intimidating attendees and attempting to drown out the speakers. When the professor moderating the panel, Kate Stith, told the protesters to “grow up,” they hurled abuse at her and insisted their disturbance was “free speech.”

The fracas caused so much chaos that the police were called. After it ended, the protesters pressured their peers to sign an open letter endorsing their actions and condemning the Federalist Society, which they claimed had “​​profoundly undermined our community’s values of equity and inclusivity.”

“I’m sure you realize that not signing the letter is not a neutral stance,” one student told her class group chat. She was upset that the panel had included Kristen Waggoner of the Alliance Defending Freedom, a conservative legal nonprofit that’s won a slew of religious liberty cases at the Supreme Court.

As similar messages clogged listservs and Discord forums, nearly two-thirds of Yale Law’s student body wound up signing the letter.

We don’t need to speculate about how temper tantrums in New Haven will reshape American institutions. The ideas underlying these outbursts have already spread to boardrooms and government agencies.

Last year, NASDAQ demanded that companies listing shares on its exchanges meet racial and gender quotas. Uber and Postmates waived delivery fees from black-owned restaurants. Montana and Vermont gave non-white residents priority access to Covid-19 vaccines.

Some high-profile initiatives have been blocked—for example, the Biden administration’s attempt to prioritize minority-owned restaurants while doling out pandemic relief. But the legal guardrails that once ensured against this sort of tipping of the scales are coming undone.

That was the lesson of Rebecca Slaughter, one of the five commissioners who run the Federal Trade Commission.

In a Twitter thread in September 2020, Slaughter declared: “#Antitrust can and should be #antiracist.”

Then she added: “There’s precedent for using antitrust to combat racism. E.g., South Africa considers #racialequity in #antitrust analysis to reduce high economic concentration & balance racially skewed business ownership.”

Here was a prominent government official—educated at Yale Law School, formerly senior counsel for Senator Chuck Schumer—proposing that a federal agency jettison its mandate (protecting consumers, ensuring competition) in the service of a political goal (narrowing the racial wealth gap) that no one had debated or voted on.

In practice, several attorneys said, that meant a company with a majority-white board could be penalized for something that a company with a majority-black board might not be. The government might even block a merger if the resulting conglomerate would be insufficiently diverse—something that has actually happened in South Africa, the country Slaughter held up as a model. Jobs, plants, investments, market share: all of it was on the line.

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Two weeks after posting her thread, Slaughter appeared on CNBC. “I want to be working to promote equity, rather than reinforce inequity,” she said. She had come to the conclusion that “it isn’t possible to really be actually neutral, nor should we be neutral in the face of systemic racism and structural racism.”

Slaughter’s statement was not a one-off. It captured the zeitgeist not just of post-Floyd progressivism, but of an increasingly large chunk of the legal profession. The idea that lawyers can’t be neutral, that confronting injustice must supersede all else, has eroded the norm that legal representation—like the ability to obtain medical care or buy a train ticket—is something every American deserves.

“Partners are being blindsided by associates who they think are liberals in their own image,” an attorney in Washington, D.C., told me. “But they’re not. The associates want to burn the place down.”

Lawyers at top law firms in New York, Washington, D.C., and Los Angeles said they fret constantly about saying the wrong thing—or taking on the wrong client.

“It’s much worse than McCarthyism,” Alan Dershowitz, a professor emeritus at Harvard Law, told me. “McCarthyism was a reflection of dying, old views. They were not the future. But the people today who are imposing litmus tests for who they represent—they are the future.”

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Law firms also worry about losing their corporate clients, which, like many American institutions, have grown more stridently ideological in recent years. {snip}

Since 2011, law firms have been pressured to drop or turn down a long list of clients: fossil fuel companies, foreign universities, a GOP-controlled House of Representatives, employers challenging Biden’s vaccine mandate, and, of course, Donald Trump.

These pressures—both internal and external—have had a chilling effect. If defending anti-vaxxers can cost you business, law firms reason, imagine the blowback of defending a transphobe or a racist.

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Another lawyer, who specializes in First Amendment litigation, described being forced to turn away a client with far-right views because the firm thought that any association with the client—even if the claims advanced were meritorious—would be bad for business.

The problem, Strossen said, is that rights mean nothing without representation. {snip}

Another cornerstone of the rule of law is an impartial judiciary. Some judges, however, have begun to see themselves not as impartial adjudicators, but as agents of social change—believing, like Slaughter, that they cannot be neutral in the midst of moral emergencies.

During the Black Lives Matter protests in 2020, for example, Massachusetts Superior Court judge Shannon Frison vowed on Facebook to “never be silent or complicit again, in any courtroom or any context.” “As the very keepers of justice,” she said, judges “not only stand with the protesters—we fall with them.”

The Washington State Supreme Court put out a statement recognizing “the role we have played in devaluing black lives,” and encouraged judges to strike down “even the most venerable precedent” if it is “incorrect and harmful.”

Such statements are not mere virtue signaling. They reflect sincerely held beliefs with real-world consequences.

Minneapolis is a microcosm of a larger trend. As progressives have set about repurposing the law, they seem to have lost sight of the people they insist they’re saving: the poor, the vulnerable, the indigent—including many racial minorities.

Consider the movement to abolish the right to eliminate members of a jury pool.

The so-called peremptory strike allows attorneys, in a trial case, to toss out potential jurors they deem biased. Peremptories, as criminal-defense attorneys see it, offer their least sympathetic clients—those against whom all the cards have been stacked—a glimmer of hope.

The problem, as progressives see it, is peremptory strikes have also been used to disproportionately exclude potential black jurors. Supreme Court Justice Steven Breyer was among the most prominent to call for an end to peremptories, arguing in a 2005 opinion that they magnify racial bias in the legal system. But it wasn’t until the last year or so that the cause gained momentum.

In August, the Arizona Supreme Court announced that the state would no longer allow peremptory challenges at civil and criminal trials. This came after a pair of Arizona judges launched a petition arguing that peremptories perpetuate “discrimination.” The New Jersey Supreme Court is considering a similar move.

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Then there’s the erosion of the principle that one is innocent until proven guilty beyond a reasonable doubt. “The Anti-Innocence Project,” one criminal-defense attorney in San Francisco joked.

​​Progressive lawyers have become more determined to turn a blind eye to certain defendants while cracking down with even greater than usual fervor on certain crimes. “The same people who are anti-incarceration for some defendants will support life plus cancer for others,” said Scott Greenfield, a criminal-defense attorney in New York. “Good people—which in practice means blacks and Hispanics, regardless of what they did—should be free. Bad people—which in practice means sex offenders and financial criminals—should go to jail.”

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