It’s winter. It’s cold and dark and driving is mostly a pain in the neck. Baseball doesn’t arrive for months. You’re looking for a warm, cozy book to read with your glass of wine. This is not it.
Ilya Shapiro’s Lawless: The Miseducation of America’s Elites is scary depressing. No – not scary AND depressing, it is so depressing as to be scary.
To properly appreciate it, go back and read his book Supreme Disorder. (Reviewed in the Winter 2021 issue of inFOCUS Quarterly.) There, he framed the problem of Supreme Court nominations as having become an “event” in which political proclivities determine the votes to seat – or not seat – a nominee.
From that review:
The selection and vote for a nominee becomes an event in a way it never had been before. And Justices are now understood to sit on the Court to advance policy – the policy of the political party that appoints them. The politician’s temptation becomes planning on a Justice making policy for the country, instead of evaluating the constitutionality of measures enacted by the Legislative branch and signed into law by the Executive.
It also allows Congress to evade its responsibilities by writing broad outlines of law, then commanding the Executive branch to write policy rules and regulations, when Congress should write laws, not hopes and dreams. (emphasis added)
That is Volume 1 of America’s legal problem. Lawless is Volume 2.
Shapiro traces the transformation of America’s law schools, professors, and administrators – and therefore, current and future lawyers and judges – from upholders of American laws as passed by Congress to insidious inculcators of left-wing ideology. And, since “rule of law” is a fundamental principle of American governance, that ideology is likely to seep into every aspect of our lives as they enter the system, pass laws, and argue them in court.
It seeped into his life.
Shapiro is a senior fellow and director of constitutional studies at the Manhattan Institute and a member of the Jewish Policy Center Board of Fellows. He is a former fellow of the Cato Institute and editor of 11 volumes of the Cato Supreme Court Review. He has testified many times before Congress and has filed more than 500 amicus curiae “friend of the court” briefs in the Supreme Court. His J.D. is from the University of Chicago Law School.
All of this made him an excellent candidate for a professorship at Georgetown University Law School. And he was hired there. But a tweet (now X post) drew the wrath of the institution, setting off a storm in his life and making him personally aware of the depths and severity of the punishment for violating diversity, equity and inclusion (DEI) rules and presumptions.
That is where Lawless begins.
The Introduction is crucial. It is a look at a) what he wrote, b) who was offended, c) the contortions of Georgetown Law, which wanted to get rid of him expeditiously and quietly, but failed. In the introduction, Shapiro gets to the heart of the book:
Law schools train future lawyers and politicians and judges, who are the gatekeepers of our institutions and of the rules of the game on which American prosperity, liberty, and equality sit …. Law students who police their professors’ microaggressions and demand the “deplatforming” of “harmful’ speakers will eventually be on the federal bench. Even before that, they’ll be occupying positions of authority… It would be a disaster for the American way of life to have future generations of lawyers think that applying the law equally to all furthers white supremacy, or that the strength of one’s rights depends on one’s level of privilege – or that due process and freedom of speech protect oppressors and perpetuate injustice.
There you have it. As Rabbi Hillel said, “All the rest is commentary.” Necessary commentary.
The Importance of Argument
Chapter One explains why law schools, more than medical schools or business schools, are essential to the future functioning of the American constitutional republic. There are dozens of examples of people chastised, fired, or otherwise forced out of positions. Fear of losing clients, discomfort with certain views, and general cancel culture are all pushing law firms to narrow the scope of the people they hire, making law schools more inclined to do the initial winnowing of candidates and staying away from controversial topics. This is antithetical to the traditional role of law schools, which is to teach future lawyers and judges how to argue their points.
And that is the larger point. Law schools and American society in general are unwilling to argue their points. To do so requires not only knowing YOUR side of the argument but also understanding the rationale on the other side – whether you agree with it or not. It is often enough these days to base one’s own argument on feelings unsupported by facts. And never mind what the other guy thinks.
Whether through ignorance, laziness, or feelings of innate superiority, this leads to demands rather than conversation, fiat rather than compromise, and an inability to understand that your own argument might be wrong. It also leads, often, to violence.
In public life, it impedes passing specific legislation grounded in American law, and explains why Congress is so often willing to pass “feels right” legislation, relying on the executive bureaucracy to fill in the points. It accounts for judges who ignore the law as written in favor of their own idea of what laws there should be and how laws should be applied.
Chapter Two is entitled, “The Online Mob Takes No Prisoners.” Enough said. But read it for the deep dive into Shapiro’s personal, horrifying, and ultimately life- and career-altering situation. Chapter Three, “Cancellation is About Power, Not Accountability,” explains itself.
How did it happen? How did we get here? Chapter Five is the answer: “The Problem Isn’t Just Ideology But Bureaucracy,” in which enormous increases in administrative bureaucracy are shown to account for two major trends:
Increased power for non-professors and non-lawyers to embed DEI and their own personal proclivities in the curriculum.
Vast increases in the cost of law school shape the backgrounds of those who can attend – either because their families are wealthy or because the DEI administrative structure seeks them out.
Race Relations
Later chapters take on the role of race relations in America today, and a sense that the founding of our country was fundamentally flawed and racist – who could argue with wanting to get racism out of the system? But for those who have actually read the founding documents, it is clear that while there were racists, sexists, antisemites, anti-Catholics – and anti-everything-else-ists in America, the system itself contained the mechanism for addressing those problems as, perhaps, people became wiser. It was an inherently optimistic system – nothing fixed in concrete, nothing at the whim of a dictator. (“No Kings” was the battle cry of the Revolution.)
The system worked. From slavery to no importation of slaves to no slavery in new territories to the Civil War – to backsliding into Jim Crow – to Voting Rights to the Civil Rights Act, the LAW evolved. The question is rather how the people evolved. There are still racists, sexists, antisemites, anti-Catholics, and anti-everything-else-ists, but the law is not on their side.
Reality notwithstanding, George Floyd and the COVID pandemic imposition of government into every aspect of the lives of citizens reinforced the notion that fundamental changes had to occur in an inherently wicked system.
Georgetown University implemented an “institutional learning outcome.” All students should graduate with an “ability to think critically about the law’s claim to neutrality and its differential effects on subordinated groups, including those identified by race, gender, indigeneity, and class.” This, Shapiro notes, is a prescription for revolution – for ripping up America’s legal heritage along with its history. He cites South Texas University law professor Josh Blackman:
When a university empowers DEI to deem speech “harmful,” DEI will deem speech “harmful.” When a university empowers DEI to designate space as “safe,” DEI will deem spaces as “safe.” When a university allows DEI to treat some people as “oppressors,” DEI will treat chosen people as “oppressors.” When a university teaches students that “harmful” speech has no place on a campus, the students will take steps to prevent “harmful” speech on their campus. This protest was a direct byproduct of what students have learned for years.
This, by the way, is one of the best things about the book. Shapiro gives concrete examples and gives credit. Throughout, you will find journalists and professors who stood for the wrong (as well as the right) things, and examples of colleges and universities that did the same. The scope of underlying disgust of the DEI community with American history, principles, and law is scary depressing.
Is there Hope?
By the time you get to Chapter 13, you are likely ready to throw in the towel. Don’t. First of all, because, as Shapiro notes, “We’re stuck with them.” And second, because:
My beef here is not in the vein of debates between conservatives and liberals as a matter of law or policy. Instead, it is with those who reject the spirit of open inquiry, who argue that the foundation of our society and its institutions is irredeemably corrupt to the point that it must be blown up and rebuilt.
To recreate the spirit of argument, Shapiro – and collaborators Christopher Rufo of the Manhattan Institute and Matt Beienburg of the Goldwater Institute – have a four-point plan.
- Abolish DEI bureaucracies
- End mandatory diversity training
- Stop political coercion
- End identity-based preferences
Taken together, the argument against arguing disappears. Students and professors will be able to say what they think – and others can agree or disagree – without fear of punishment, harassment, or, in Shapiro’s own case, firing. Congress has a role to play, the executive branch has a role, and so do employers, government and private. But after Fifth Circuit Judge James Ho announced his intention not to hire anyone from Yale because of the school’s illiberal policies, critics made their own list of points:
- It only hurts students
- It won’t change anything
- It is not appropriate for a federal judge
- It is attention-seeking
- It is hypocritical, embracing cancel culture
Well, says Shapiro – argue it out. And that’s the point.
We must embrace real diversity and celebrate the power of debate, dialogue, and disagreement. We must allow ideas to flow freely so our law schools and lawyers can realize their true potential. Nothing less than the health of our democracy is at stake.
Amen.
PS: Read the annotated appendices.
Shoshana Bryen is Senior Director of The Jewish Policy Center and Editor of inFOCUS Quarterly.
