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Sunday, November 13, 2005

Yale Law School "Frets Over Court Choices"

I admit it.   I do "believe the hype":  Yale Law School and its faculty are great.  I was -- and I use this word advisedly -- blessed with the opportunity to study there.  I am thankful for the friendships formed, the conversations started, the questions raised, the challenges posed, and the doors opened there.  At the same time, sometimes the place and its people are just insufferable.

In today's New York Times, Adam Liptak reports:

The morning after Judge Samuel A. Alito Jr. was announced as the president's choice for the Supreme Court, some students and professors at his alma mater, the Yale Law School, were already hard at work - to defeat him.

Professor Bruce Ackerman, who teaches constitutional law here, appeared on CNN with this instant assessment: "I don't think conservative is the word. This person is a judicial radical."

A group called Law Students Against Alito was formed the same day. "There is a chunk of the population, probably a majority," said Ian Bassin, a founder of the group, "who does not want this guy on the Supreme Court."

If the past is any guide, the bond between this conservative judge and this law school, which has traditionally attracted liberal students and faculty members, is about to be tested. And the early indications here are that Judge Alito will face some of the hostility that met the last two Supreme Court nominees with connections to the school, Judge Robert H. Bork and Justice Clarence Thomas. . . .

Prof. Robert W. Gordon, who teaches legal history, said he had read all of Judge Alito's 15 years of opinions. "Alito is a careful carpenter," Professor Gordon said. "The things are well built, but they are not beautiful. Alito in my judgment is just too steadfastly conservative."

After discussing Justice Thomas's (apparently) not-so-warm feelings toward the law school, Liptak notes:

Justice Thomas's confirmation hearings initially focused on his qualifications and then were rocked by accusations of sexual harassment by a former colleague in the Reagan administration, Anita Hill, of the Yale Law class of 1980. Students these days make jokes at Justice Thomas's expense, said Stephen Townley, a third-year student. "It's a question about intellectual rigor."

A few thoughts:  First, and to be clear, I do not think -- responding to Professor Althouse -- that Yale Law School and its faculty or students owe support to Judge Alito just because he attended Yale Law School.  (They should, in my view, support him -- or, at least, not oppose him -- because (a) they are smart enough to know that (b) whether or not they agree with him, Alito is obviously and overwhelmingly qualified and well-suited for the position to which he has been appointed).

Next, I believe that it is the responsibility of every law professor and informed Court observer -- whatever his or her "constitutional philosophy" or political orientation -- to avoid scrupulously and criticize clearly inexcusably ignorant statements of the kind [UPDATE:  I should, in fairness, insert the word "reportedly" here] expressed by Mr. Townley.  Obviously, engaged and reasonable people can and do disagree in good faith about the legal and normative merits of Justice Thomas's arguments, and about the policy outcomes those arguments facilitate or validate.  The claim, though, that Justice Thomas and his work are not "intellectual[ly] rigor[ous]" -- or, more precisely, that the work is any less "rigor[ous]" than that of his colleagues and predecessors on the Court -- is frivolous (or worse).  [UPDATE:  Mr. Townley has contributed a helpful and thoughtful comment, below, clarifying his views.]

Finally, the views about Judge Alito that are attributed in Liptak's piece to Professors Gordon and Ackerman -- who are both, obviously, top-shelf scholars -- cannot, in my view, be taken seriously as anything other than statements that Judge Alito is likely to reach conclusions in some cases that will facilitate or validate policy positions that Professors Gordon and Ackerman oppose.  There is nothing "radical" or "too" steadfastly conservative about Alito; there is nothing remarkable, illegitimate, or extremist about his approach; there is nothing particularly surprising about any of the results he has reached or about any of the opinions he has written.  His work is the work of a careful, conscientious, very smart, "conservative."  Do Professors Gordon and Ackerman really believe that such work is disqualifying?  Has it really come to that?

(Tom Smith nails it, here.  And there's more -- in a less critical vein -- from Will Baude and Dan Solove.)

Posted by Rick Garnett on November 13, 2005 at 03:31 PM | Permalink


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Tracked on Nov 14, 2005 9:01:53 AM


I understand your feeling. Yale Law School is a great place where only noble people are studing.

Posted by: School Teacher | Nov 23, 2005 9:41:39 AM

Half Sigma,
Are you nuts? Agree or disagree, Yalies must stick together? That's intellect!

Posted by: bette | Nov 18, 2005 6:49:54 AM

When Scalia and Thomas disagree, Thomas is the one who's right. Thomas is the better of the two justices. Similarly, when Marshall and Brennan disagreed, Marshall was right.

To a different issue: Alito paid huge tuition money to attend Yale, on that basis alone he's entitle to support. In the same manners that lawyers support their paying clients even if they may not personally agree with them.

Posted by: Half Sigma | Nov 15, 2005 1:58:56 PM

Professor Garnett,

I have to take you to task for miscontruing the Liptak quotation of Townley, even with your update.

Liptak wrote:
"Students these days make jokes at Justice Thomas's expense, said Stephen Townley, a third-year student. 'It's a question about intellectual rigor.'"

When I read this, I understood it as Townley's description of what students at the law school do: joke about Justice Thomas's intellectual rigor. For some reason, you took it as expressing Townley's views on Justice Thomas and characterized the "inexcusably ignorant" statements (a label with which I agree) as "reportedly" expressed by Townley. If students really do make these jokes at the law school, how can Townley's description of the phenomenon be ignorant? Do you not recognize that people can describe the occurrence of things with which they do not agree?

I think you owe Townley an apology and an update that actually corrects your mischaracterization. Townley did not even "reportedly" express the statement you attribute to him in the personal sense with which you use "express"; you misread the article.


Posted by: Nick Brenner | Nov 14, 2005 7:41:18 PM

Mr. Townley, you say that you do not believe that YLS students believe that Justice Thomas lacks intellectual rigor, but that there is a widespread perception that he is less "intellectual" (your quotes) than Justice Scalia. At this point, I really don't know what you believe or what you are trying to say. Is there a difference between having intellectual rigor and being an "intellectual"? What is the difference?

My guess, based on my own years in fancy educational institutions, is that describing someone as not "intellectual" is simply a tactful way of saying that the person is not that bright, but maybe I moved in circles more judgmental and caustic than yours.

Posted by: y81 | Nov 14, 2005 6:50:15 PM

Thank you, Mr. Townley, for the clarification. I am curious, however, about your contrast between Thomas and Scalia on "internal consistency." On the examples you mention -- race and 11th Amendment -- I think most of Scalia's and Thomas's votes are the same, even if opinions differ (and on most, they joined the same opinions). Where they diverge, I can see how one might prefer Scalia's view, or prefer Thomas's view, in one case, or in a string of cases. But I don't see the "internal inconsistency," i.e., where Thomas contradicts Thomas. Can you cite some examples?

Also, as a separate aside -- you say that, in the view of some, Scalia is more likely than Thomas to "offer unexpected but internally consistent opinions, like that of Justice Scalia in Hamdi." But if the decision is internally consistent with Scalia's other opinions, then why is it "unexpected" at all? If the clues are in the other cases, then it should be no surprise, and the flaw is in the observers' "expectation" that Scalia would have been INCONSISTENT. Or, if it turns out that a decision in EITHER direction would have been consistent with his prior jurisprudence, then the observation means even less, as there's plainly no suprise.

The only suprise seems to be against a baseline that he'd support the "politically conservative side," and that expectation says more about the observers in question than it does about Scalia, or about Thomas, or whatever.

Posted by: just me | Nov 14, 2005 6:49:47 PM

Thanks for chiming in.
In any event, the lesson you learned is a good one.

Posted by: Dan Markel | Nov 14, 2005 3:11:10 PM

As the subject of criticism on this page, I write to respond. I hope to clarify the ways in which I believe Adam Liptak mischaracterized what I said (I say 'believe' since I do not have a transcript of what precisely I said, but I defer to others who were in the room for corroboration) and the ways I know his presentation distorted what I meant. Before proceeding, I would like to state up front that I do NOT believe that Justice Clarence Thomas, or his opinions, lack intellectual rigor, nor do I think that is what YLS students believe. While I don't agree with him at times, and while I do think he is also internally inconsistent at times (see below), I did not mean to impugn his intelligence; I was making a more descriptive, more narrow point. At no point during the interview did I say anything that could plausibly have been understood as expressing my personal opinion of Justice Thomas (contra the impression left by Liptak's use of a short, ambiguous drop quote).

Now, on to what I meant: First, I meant to ask the question, "if Justice Scalia were an alumnus of this Law School, would we have embraced him to a greater extent than we have embraced Justice Thomas?" My assumption is that the answer to this question is "yes." Since Justice Scalia and Justice Thomas are at least arguably equally conservative, I posited that the tension that exists between the Law School and Justice Thomas is not entirely the result of a difference in ideological position. I suggested that the Law School may not have embraced Justice Thomas because of a widespread perception (whether correct or not) that Justice Thomas is less 'intellectual' than, say, Justice Scalia. As evidence, I believe I said that 'if you hear a joke made about a Supreme Court Justice, it's almost always made about Thomas.' Although I don't entirely agree with Will Baude -- I have heard more than a few jokes about Thomas (usually about his reluctance to ask questions from the bench or about his reliability as a 'conservative vote' -- e.g. students don't expect him to offer unexpected but internally consistent opinions, like that of Justice Scalia in Hamdi) -- I certainly did not suggest and did not mean to suggest that YLS students sit around cracking jokes about Justice Thomas. To do so frequently would be intellectually arrogant on our part. What I did wonder about is the difference in kind between YLS views of Judge Bork (or Justice Scalia) and YLS views of Justice Thomas.

Second, I meant to suggest that the parameters of the debate over Justice Thomas have shifted, from the ad hominem (and non-productive) attacks we saw during the hearings to a debate both about the internal consistency of the positions he takes (e.g. originalism v. how the framers of the Reconstruction Amendments understood race or originalism/textualism v. expansive understanding of the Eleventh Amendment) and his ideology.

The lesson I have learned: make sure that reporters read back to you the quotes they intend to use and speak extremely precisely. I am happy to offer any further clarification. And I hope that others on this site will heed Bruce's caution in attributing radical positions to those quoted in the Liptak article. I, for one, did not think his article captured the substance or even necessarily the tenor of the one hour discussion four students had in the Yale Law Journal offices. But I was not privy to the other interviews...

Posted by: Stephen Townley | Nov 14, 2005 1:58:04 PM

I have heard a great many people make jokes about Justice Thomas's intellectual rigorousness, but outside of first-years in their first month, I have never heard a student here at YLS do so. Some YLS students are dumb, but few are that dumb.

Posted by: Will Baude | Nov 14, 2005 10:36:24 AM

I join in the chorus of denunciation. Agree or disagree with them, Thomas' opinions have proven to be far more interesting and creative than he is given credit for, and the point about the intellectual rigor about his opinions is false. I wonder if it's bullshit though?

Posted by: Dan Markel | Nov 14, 2005 10:12:44 AM

I'm sure that Bruce is right, and that the snippets quoted in the piece do not capture entirely Professor Gordon's or Professor Ackerman's views. That said, I bet they come pretty close.

Posted by: Rick | Nov 14, 2005 9:11:57 AM

"Students these days make jokes at Justice Thomas's expense, said Stephen Townley, a third-year student. 'It's a question about intellectual rigor.'"

Imagine the outcry there would be if a member of the Yale baseball team said that teammates make jokes about Frank Robinson because he doesn't have some of the necessities to be a major league manager.

It is hard to see this as anything other than racism among the Yale school students. Townley should back up his charge with specific examples of Thomas's writings that definitively "lack intellectual rigor."

I take Bruce's caveat, but if there's some context here that makes this comment acceptable, let's hear about it.

Posted by: howardl | Nov 14, 2005 9:03:21 AM

Many of the quotes in that article are short and colorful, but more than a little vague. I.e., they sound like they were extracted from much longer conversations in order to illustrate the story rather than accurately summarize the interviewee's views. I recommend caution.

Posted by: Bruce | Nov 14, 2005 1:21:26 AM

Last I heard, Justice Brennan was all the rage at YLS. Somehow, though, I doubt students are joking about his lack of intellectual rigor, though his legal reasoning has had the half life of unrefigerated eggs. Lesson: Mediocre white liberal="smart" and sharp black conservative="dumb" at Yale, no underlying facts needed.

Posted by: D'oh | Nov 13, 2005 10:13:17 PM

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