Getting blocked on Twitter is never a good or proud thing to have done. I assume that Cass Sunstein, the Robert Walmsley University Professor at Harvard Law School, blocked me yesterday because I called him a motherfucker who was too stupid to understand his own bad writing. My calling Cass Sunstein a motherfucker did nothing to advance the discourse; but then, Cass Sunstein’s own contribution to the discourse—a column for Bloomberg arguing that it is wrong to say the Supreme Court is losing its legitimacy—was an effort to actively move the discourse backwards, so I still feel OK about it.
Sunstein’s column was written on September 30, before Senate Republicans had finished pushing Brett Kavanaugh onto the Supreme Court, but Sunstein was so proud of it he tweeted it out yesterday, with the message, “The supremacy of law is a precious achievement. The shift in the composition of the Supreme Court does not endanger it.”
If there’s one useful lesson to be taken away from the Kavanaugh debacle, it’s that when somebody decides to smugly deny the truth of some obvious fact, there’s no benefit to respectfully hearing them out. Here’s what Sunstein wrote in his own piece, to go with his assertion that the addition of Kavanaugh to the court does not endanger the rule of law:
If Kavanaugh is confirmed, many millions of Americans will conclude that something terrible has been done—through an exercise of raw political power. Whether or not they are right, that widespread belief will cast a new cloud over the court.
Kavanaugh — or for that matter any Trump-appointed justice — would give the court a solid conservative majority, with the votes to move the law in dramatic new directions. With respect to sex equality, affirmative action, voting rights, access to court, commercial speech, and abortion, the nation could be in for a wild ride, in which 5-to-4 majorities consistently end up ruling that the meaning of the Constitution looks a lot like the political convictions of the Republican Party.
That would be ugly and dangerous. Let’s hope it never happens.
Somehow, between September 30—before the nation had learned that the last-ditch FBI investigation of Kavanaugh was a sham—and the end of Kavanaugh’s hyperpartisan confirmation vote, Sunstein’s position on the court becoming a pure Republican political organ evolved from “Let’s hope it never happens” to denying it could happen, while it happened.
It’s not really, or not primarily, the Supreme Court that Sunstein is trying to jawbone back into respectability. The professor is mainly hoping, through sheer gassy assertion, to float the academic-judicial establishment up out of the open sewer in which it finds itself rudely overturned.
In the course of Kavanaugh’s appointment, the legal academy managed to disgrace itself twice over. First came its enthusiastic endorsement of the nominee, as a matter of personal and professional solidarity: This man, the professors assured the public, was worthy to be on the Court, regardless of how mere partisans may have felt about his politics, because he had earned his credentials and proven himself to be one of them.
Yale Law professor and highly successful irritating person Amy Chua made the establishment case for Kavanaugh in the Wall Street Journal, with praise that accidentally doubled as an indictment. Kavanaugh, Chua wrote, was a champion of women, committed to hiring women as clerks:
I’ve gotten to know this side of Judge Kavanaugh while serving on Yale Law School’s Clerkships Committee for most of the past 10 years. It also affects me personally: Last year my daughter accepted an appellate clerkship from Judge Kavanaugh, which was set to begin next month.
This confession of self-dealing—Chua and her husband, fellow Yale Law professor Jed Rubenfeld, are central figures in the school’s judicial-clerk hiring process, and their daughter is a Yale Law product—was presented as an argument for the readers to accept Kavanaugh, rather than, as it might have been under a more lowbrow ethical standard, an argument for the readers to ignore Chua. Over the subsequent weeks, it would turn out that Kavanaugh’s feminist credentials were not as indisputably impeccable as his clerk-hiring record might suggest; nor were Chua’s and Rubenfeld’s. The clerkship system, the top rung of the elite-college-to-elite-law-school meritocratic ladder that Kavanaugh shouted so passionately about his hard work climbing, is revealed to be a sordid aristocratic mess.
Then, to that embarrassment, Kavanaugh and the Senate added full humiliation. After the judge melted down in his final hearing, yelling about conspiracies and revenge, the respectable establishment tried to rescind its support of him. He did not, after all, have the judicial temperament they had promised; he had proven himself boorish and immoderate; the integrity of the legal system demanded more and better answers than he had provided.
And the Senate ignored them. The legal academy discovered, to its horror, that having given the Federalist Society the credentials it needed for Neil Gorsuch and Brett Kavanaugh, there was no way to take that back. The conservative judicial movement didn’t care about standards or norms, or any meaningful sense of the law. It cared about power, and it had taken it.
The Federalist Society spent decades growing into the legal academy and operating alongside it, but its goals were never the academy’s goals—neither the lofty public goals of advancing a culture of healthy legal scholarship and debate, nor the grabbier private goals of making sure everyone took care of each other and the institutions. Yale Law School is a dirty joke; the American Bar Association is an afterthought.
Now here, in the moment of ruination, comes Cass Sunstein burbling about the inviolable majesty of the law. “As much as any time in American history, this is a period for judicial minimalism, in the form of rulings that can attract support from Americans with diverse commitments—as well as the appointees of both Republican and Democratic presidents,” he writes.
Whatever the Robert Walmsley University Professor may be holding forth on, it’s not the state of the law or the courts. This is wishfulness taken to the level of malpractice, like writing that early summer of 1914 was a good time for world peace. It’s an empty statement of aspiration, delivered after the people who really matter have already seized everything they aspired to hold.