“will expand the gap between the legal academy and the courts into a chasm”
Law school students today haven’t been trained to deal with the conservative shift in the Supreme Court.
Nicholas M. Gallagher writes at National Review:
Today’s Law-School Graduates Can’t Speak the New Supreme Court’s Language
With Brett Kavanaugh on board, the Supreme Court appears to have a solid right-leaning majority for the first time in 80 years. The split is 5–4, but the conservative justices are considerably younger than their Democratic counterparts: The oldest conservative, Justice Thomas, is only 70, making him a decade younger than Stephen Breyer and a decade and a half younger than Ruth Bader Ginsburg. Barring unexpected ideological shifts or tragedy, this majority will likely endure for a generation, producing a significant shift in American law.
As we await the first flood of decisions from the new lineup, it’s worth asking how the shift will play out for the legal profession as a whole. For one thing, it will expand the gap between the legal academy and the courts into a chasm.
As Professor Nicholas Quinn Rosenkranz of Georgetown Law observed in 2014, “There are more conservatives on the nine-member United States Supreme Court than there are on this 120-member faculty.” Such a ratio was — and still is — the norm for elite law schools. This means that at best, students learn originalist and textualist thought from teachers for whom it is a second language. At worst, they are taught fantasy law — professors skimming past the law as it is, much less as it is likely soon to be, in favor of theories that would be adopted only if the Warren Court were resurrected.
It says something about hiring standards at top law schools that the prolific Josh Blackman, who won the Federalist Society’s 2018 Joseph Story Award for an academic under 40 “who has demonstrated excellence in legal scholarship,” is tenured at the South Texas College of Law Houston rather than at a top-ten school.
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