Reflections on Tushnet, Primus, Gorsuch, and the Law School Curriculum

Both Mark Tushnet’s and then Richard Primus’s posts, each on Justice Gorsuch’s overconfident assertions about highly debatable matters of historical fact and intellectual analysis, raise important questions not only about judicial over-confidence when opining, but also about the education that judges bring with them to the bench.  

Consider the famous advice by Judge Learned Hand as to what lawyer-judges really needed to know in order to perform their tasks as civic leaders:

I venture to believe that it is as important to a judge called upon to pass on a question of constitutional law, to have at least a bowing acquaintance with Acton and Maitland, with Thucydides, Gibbon and Carlyle, with Homer, Dante, Shakespeare and Milton, with Machiavelli, Montaigne and Rabelais, with Plato, Bacon, Hume and Kant, as with books that have been specifically written about the subject.  (Hand, Sources of Tolerance, 79 U. Pa. L. Rev. 1, 12 (1930).

Hand’s comment is quoted in an essay by Richard Posner, Foreword: What Books on Law Should Be, 112 MICH. L. REV. 839 (2014), who follows it by his own comment:  “Forget it!  Modern judges are the product of modern American culture, which is philistine,” not to mention the obvious point that even the demands of non-philistine education change over time.  Posner, himself a noted polymath, is undoubtedly correct that “[t]oday Hand’s list would … be unlikely to include Acton, Maitland, Carlyle, or Bacon, all of whom are distinctly dated; they would make way for Mill and Nietzsche, Wittgenstein and Kafka, among many others.” Posner observes that most people make their acquaintance with such authors, whoever they might be, in their youth. Relatively few people start reading even Shakespeare for the first time as adults; the number is surely far smaller for Wittgenstein.  What Posner (and Hand) are really alluding to is a vision of education that prepares youngsters for a lifetime of returning to central canonical authors (even if the actual content of the canon shifts over time) and to realize, for example, that the story of the Trojan War, and its origins in the egos of various participants, set out in the Iliad, is all too relevant to the onset of many wars in our own time (with, perhaps, almost equally awful consequences both for the poor souls conscripted to do the actual fighting and the societies that become enmeshed in the ego-drive projects of their leaders).  Lawyers who mindlessly praises “zero-tolerance” policies of law enforcement are well advised to reread Measure for Measure, and so on.

From one perspective, Judge Gorsuch is unusually well-educated.  After all, he has a B.A. from Columbia, a J.D. from Harvard, and a D.Phil. from Oxford.  Most relevant is probably his degree from Columbia, which is unusual among contemporary American universities in continuing to require that their students take courses on the classics of what used to be called “Western Civilization” and today is apparently called simply “Contemporary Civilization.”  Columbia’s web site describes “CC,” a required two-semester sophomore course, as offering “surveys [of] the history of moral and political thought from Plato to the present.”  First-year students will have already taken a course on “Masterpieces of European Literature and Philosophy”  that “surveys, over two semesters, some of the most influential works in all of Western literature.”   I note, incidentally, that the current syllabus for CC includes John Locke.

            One assumes that current members of the U.S. Supreme Court are unusually well-educated among their cohort of lawyers.  But my point is that to the extent that is true, their truly relevant education, from Hand’s perspective, almost certainly occurred prior to the arrival at law school, whether they went to Harvard or to Yale, the alma maters of today’s entire Court (with an asterisk for Ruth Bader Ginsburg, who spent her final year at Columbia and actually holds a Columbia law degree). If students do not bring a broad education in, say, philosophy, literature, or history, they are unlikely to be forced to fill in the blanks once they arrive in Cambridge or New Haven. Michael Sandel’s famous Harvard undergraduate course on “Justice” has a typical enrollment of around 700 students, some of whom undoubtedly go on to attend the Harvard or Yale law schools.  But neither, to my knowledge, requires that their students thereafter take courses that systematically analyze various approaches to defining “justice.”  To this extent, they are all like Gorgias’s school of rhetorical arts, the subject of Plato’s Gorgias dialogue, in which no attention is paid to whether or not the students in fact can distinguish the just from the unjust, or the right from the wrong.  (And, I discovered in teaching the Gorgias for a number of years as part of my course on “the legal profession,” that most students are appalled by the idea that their views about such matters would be taken into account in deciding whether or not to admit them to law school and to teaching them the arts of legal-rhetorical argument.) 

For better or worse, incidentally, those students who arrive at law school “insufficiently” trained in economics, are in effect forced to pick up skills in basic economic analysis, given the pervasiveness of “law-and-economics” in every aspect of the contemporary legal curriculum, including constitutional law. But this is not at all true, say, of picking up the skills necessary to analyze complex data and statistical argument.   (Ans so we get the suspender-snapping prideful illiteracy of Chief Justice Roberts, who dismisses such argument as "gobbledygook" irrelevant to understanding the realities of contemporary gerrymandering, etc.)  And, frankly, even those students who took some American history as undergraduates are increasingly likely to know only American social history.  As important as that is, one can still lament that fewer and fewer students are really familiar with what today seems a decidedly old-fashioned knowledge of American political history or even American i(or more general) ntellectual history insofar as that almost necessarily focuses on books written by highly literate members of elites who could get their scribblings published.  

It is often painful enough to read debates among the justices about the meanings of past precedents. See, e.g., the shouting match between Chief Justice Roberts and Justice Breyer about Brown in Parents Involved (where I believe Breyer was clearly correct, for what that’s worth). It is excruciating, though, to read debates among the justices about controverted aspects of our history, as in the opinions of Scalia and Stevens in Heller.  As I wrote at the time, neither opinion would have been admissible as a paper in a half-way rigorous seminar on legal history at a major university.  It appears clear that the same is true of Gorsuch’s musings on the facts of Schechter, even though he had read a single book, by Amity Schlaes, from which he drew his description of the case.  

As already noted, Gorsuch has almost certainly read Locke’s Second Treatise, at least when he was a sophomore at Columbia.  That is to his credit.  But one wonders—I do not, obviously, genuinely know the answer—if he studied Locke more thoroughly, especially with regard to the nuances of “separation of powers” elaborated in Richard’s extremely thoughtful post.  Gorsuch’s Wikipedia entry indicates that while at Oxford “he took courses and defended a doctoral thesis, concerning the morality of assisted suicide, under the supervision of philosopher John Finnis.”  And if his ten years in private practice were typical, one assumes there was relatively little free time for deep reading in anything other than conventional legal materials.  One assumes that most of his intellectual non-practice time was spent preparing his 2006 book, The Future of Assisted Suicide and Euthanasia, an extremely interesting topic that, however, does not directly relate to the central issues posed by different theories of organizing the state, including the role of administrative agencies.  

I really do not mean to be picking on Justice Gorsuch.  My point is that I am not confident that I would assign the opinions of any of the current justices to students as sources of truly reliable information about controverted matters of history or philosophy.  Perhaps I’d feel differently if any of the clerks had Ph.Ds in those subjects.  I do regard it as remarkable that, at least to my knowledge, there have been remarkably few, if any, “law-and” clerks. (I in fact know of none, but that may be a sign of my ignorance.  I am quite confident, though, that the number, even if more than zero, is minimal.) [UPDATE:  I HAVE NOW BEEN INFORMED THAT TWO RECENT CLERKS, ONE FOR JUSTICE SOTOMAYOR AND ANOTHER UPCOMING FOR JUSTICE GINSBURG, ARE HARVARD HISTORY PH.Ds.  I HOPE THAT THIS IS THE TIP OF AN ICEBERG.  I WOULD BE DELIGHTED TO BE PROVED COMPLETELY MISTAKEN IN MY SURMISE.]

 One of Mark Tushnet’s most famous descriptions was “the lawyer as astrophysicist,” referring to the belief among the smart people who become successful lawyers, that they can master any subject, however arcane, in a weekend of intense study.  (This is linked, I suspect, to the belief that our favorite political candidates can truly master the arcana of complex public policy simply by being “briefed” in some of the details of the subject.  What does one really need to know, for example, in order to posit a belief in “Medicare for All” (via single payer or using private insurance, as in a number of European countries), as opposed to tweaking Obamacare (or, indeed, repealing it and beginning with something brand new?)  It is easier to presume that our favorites can indeed master the relevant materials than to come to terms with the fact that they really know very little about the subjects in which they are called upon to make crucial decisions.   (And when it’s Donald Trump and Boris Johnson, making the decisions, we might well wish instead to have chimpanzees throwing darts at boards!)

The ultimate topic, of course, is how, if at all, one translates “expert knowledge” (which itself is often the subject of vigorous dispute among the acknowledged “experts”) into decision-making by gifted amateurs, which in this context definitely includes enrobed judges (and all other political officials).  It would be insane to expect that they meet the standards to be hired to teach the young about history, philosophy, etc. at a decent university.  But does that mean that we should simply be tolerant of the degree to which their assertions about what we might regards as factual matters (or the analysis of a person’s thought, as with Locke) are altogether questionable?  Martin Flaherty wrote years ago about “History Lite,” i.e., the kind of history practiced by most legal academics and, even moreso, by judges drawing on historical materials.  Is there a “Goldilocks point” between unacceptable “history lite” and an unrealistic demand for “history heavy?  Ditto any other academic discipline that has wended its way into legal analysis.

And, finally, given that law schools take on the (monopolistic) task of teaching lawyers (and future judges), should those of us who are legal academics spend more time in unhappy argument about what (if anything) should be required of all of our students instead of continuing the de facto laissez-faire approach that allows students to take whatever they want after the first year (which, with rare exceptions, focuses entirely on traditional legal analysis, plus some law-and-economics)?