Reflections On Tushnet, Primus, Gorsuch, Together With The Police Schoolhouse Curriculum

Both Mark Tushnet’s in addition to and then Richard Primus’s posts, each on Justice Gorsuch’s overconfident assertions most highly debatable matters of historical fact in addition to intellectual analysis, enhance of import questions non only most judicial over-confidence when opining, but also most the pedagogy that judges convey with them to the bench.  

Consider the famous advice past times Judge Learned Hand as to what lawyer-judges really needed to know inwards lodge to perform their tasks as civic leaders:

I firm to believe that it is as of import to a gauge called upon to move past times on a inquiry of constitutional law, to induce got at to the lowest degree a bowing acquaintance with Acton in addition to Maitland, with Thucydides, Gibbon in addition to Carlyle, with Homer, Dante, Shakespeare in addition to Milton, with Machiavelli, Montaigne in addition to Rabelais, with Plato, Bacon, Hume in addition to Kant, as with books that induce got been specifically written most the subject.  (Hand, Sources of Tolerance, 79 U. Pa. L. Rev. 1, 12 (1930).

Hand’s comment is quoted inwards an essay past times Richard Posner, Foreword: What Books on Law Should Be, 112 MICH. L. REV. 839 (2014), who follows it past times his ain comment:  “Forget it!  Modern judges are the production of modern American culture, which is philistine,” non to cite the obvious dot that fifty-fifty the demands of non-philistine pedagogy alter over time.  Posner, himself a noted polymath, is undoubtedly right that “[t]oday Hand’s listing would … move unlikely to include Acton, Maitland, Carlyle, or Bacon, all of whom are distinctly dated; they would build agency for Mill in addition to Nietzsche, Wittgenstein in addition to Kafka, with many others.” Posner observes that most people build their acquaintance with such authors, whoever they powerfulness be, inwards their youth. Relatively few people start reading fifty-fifty Shakespeare for the firstly fourth dimension as adults; the number is sure enough far smaller for Wittgenstein.  What Posner (and Hand) are really alluding to is a vision of pedagogy that prepares youngsters for a lifetime of returning to cardinal canonical authors (even if the actual content of the canon shifts over time) in addition to to realize, for example, that the even out of the Trojan War, in addition to its origins inwards the egos of diverse participants, laid out inwards the Iliad, is all also relevant to the onslaught of many wars inwards our ain fourth dimension (with, perhaps, almost as awful consequences both for the pitiable souls conscripted to produce the actual fighting in addition to the societies that learn enmeshed inwards the ego-drive projects of their leaders).  Lawyers who mindlessly praises “zero-tolerance” policies of constabulary enforcement are good advised to reread Measure for Measure, in addition to hence on.

From i perspective, Judge Gorsuch is unusually well-educated.  After all, he has a B.A. from Columbia, a J.D. from Harvard, in addition to a D.Phil. from Oxford.  Most relevant is in all likelihood his grade from Columbia, which is odd with contemporary American universities inwards continuing to require that their students select courses on the classics of what used to move called “Western Civilization” in addition to today is apparently called merely “Contemporary Civilization.”  Columbia’s spider web site describes “CC,” a required two-semester sophomore course, as offering “surveys [of] the history of moral in addition to political thought from Plato to the present.”  First-year students volition induce got already taken a class on “Masterpieces of European Literature in addition to Philosophy”  that “surveys, over ii semesters, some of the most influential plant inwards all of Western literature.”   I note, incidentally, that the electrical current syllabus for CC includes John Locke.

            One assumes that electrical current members of the U.S. Supreme Court are unusually well-educated with their cohort of lawyers.  But my dot is that to the extent that is true, their genuinely relevant education, from Hand’s perspective, almost certainly occurred prior to the arrival at constabulary 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 in conclusion twelvemonth at Columbia in addition to really holds a Columbia constabulary degree). If students produce non convey a wide pedagogy in, say, philosophy, literature, or history, they are unlikely to move forced to fill upwardly inwards the blanks i time they come inwards in Cambridge or New Haven. Michael Sandel’s famous Harvard undergraduate class on “Justice” has a typical enrollment of around 700 students, some of whom undoubtedly move along to attend the Harvard or Yale constabulary schools.  But neither, to my knowledge, requires that their students thereafter select courses that systematically analyze diverse approaches to defining “justice.”  To this extent, they are all similar Gorgias’s schoolhouse of rhetorical arts, the dependent of Plato’s Gorgias dialogue, inwards which no attending is paid to whether or non the students inwards fact tin distinguish the exactly from the unjust, or the right from the wrong.  (And, I discovered inwards teaching the Gorgias for a number of years as business office of my class on “the legal profession,” that most students are appalled past times the thought that their views most such matters would move taken into concern human relationship inwards deciding whether or non to acknowledge them to constabulary schoolhouse in addition to to teaching them the arts of legal-rhetorical argument.) 

For ameliorate or worse, incidentally, those students who come inwards at constabulary schoolhouse “insufficiently” trained inwards economics, are inwards effect forced to alternative upwardly skills inwards basic economical analysis, given the pervasiveness of “law-and-economics” inwards every aspect of the contemporary legal curriculum, including constitutional law. But this is non at all true, say, of picking upwardly the skills necessary to analyze complex information in addition to statistical argument.   (Ans hence nosotros learn the suspender-snapping prideful illiteracy of Chief Justice Roberts, who dismisses such declaration as "gobbledygook" irrelevant to agreement the realities of contemporary gerrymandering, etc.)  And, frankly, fifty-fifty those students who took some American history as undergraduates are increasingly probable to know only American social history.  As of import as that is, i tin soundless lament that fewer in addition to fewer students are really familiar with what today seems a decidedly old-fashioned noesis of American political history or fifty-fifty American i(or to a greater extent than general) ntellectual history insofar as that almost necessarily focuses on books written past times highly literate members of elites who could learn their scribblings published.  

It is oftentimes painful plenty to read debates with the justices most the meanings of past times precedents. See, e.g., the shouting jibe betwixt Chief Justice Roberts in addition to 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 with the justices most controverted aspects of our history, as inwards the opinions of Scalia in addition to Stevens in Heller.  As I wrote at the time, neither thought would induce got been admissible as a newspaper inwards a half-way rigorous seminar on legal history at a major university.  It appears clear that the same is truthful of Gorsuch’s musings on the facts of Schechter, fifty-fifty though he had read a unmarried book, past times Amity Schlaes, from which he drew his description of the case.  

As already noted, Gorsuch has almost certainly read Locke’s Second Treatise, at to the lowest degree when he was a sophomore at Columbia.  That is to his credit.  But i wonders—I produce not, obviously, genuinely know the answer—if he studied Locke to a greater extent than thoroughly, peculiarly with regard to the nuances of “separation of powers” elaborated inwards Richard’s extremely thoughtful post.  Gorsuch’s Wikipedia entry indicates that piece at Oxford “he took courses in addition to defended a doctoral thesis, concerning the morality of assisted suicide, nether the supervision of philosopher John Finnis.”  And if his x years inwards individual practise were typical, i assumes in that place was relatively lilliputian gratis fourth dimension for deep reading inwards anything other than conventional legal materials.  One assumes that most of his intellectual non-practice fourth dimension was spent preparing his 2006 book, The Future of Assisted Suicide in addition to Euthanasia, an extremely interesting topic that, however, does non straight relate to the cardinal issues posed past times different theories of organizing the state, including the purpose of administrative agencies.  

I really produce non hateful to move picking on Justice Gorsuch.  My dot is that I am non confident that I would assign the opinions of whatever of the electrical current justices to students as sources of genuinely reliable information most controverted matters of history or philosophy.  Perhaps I’d experience differently if whatever of the clerks had Ph.Ds inwards those subjects.  I produce regard it as remarkable that, at to the lowest degree to my knowledge, in that place induce got been remarkably few, if any, “law-and” clerks. (I inwards fact know of none, but that may move a sign of my ignorance.  I am quite confident, though, that the number, fifty-fifty if to a greater extent than 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 with the smart people who learn successful lawyers, that they tin principal whatever subject, notwithstanding arcane, inwards a weekend of intense study.  (This is linked, I suspect, to the belief that our favorite political candidates tin genuinely principal the arcana of complex world policy merely past times beingness “briefed” inwards some of the details of the subject.  What does i really demand to know, for example, inwards lodge to posit a belief inwards “Medicare for All” (via unmarried payer or using individual insurance, as inwards a number of European countries), as opposed to tweaking Obamacare (or, indeed, repealing it in addition to offset with something build new?)  It is easier to presume that our favorites tin indeed principal the relevant materials than to come upwardly to price with the fact that they really know really lilliputian most the subjects inwards which they are called upon to build crucial decisions.   (And when it’s Donald Trump in addition to Boris Johnson, making the decisions, nosotros powerfulness good wishing instead to induce got chimpanzees throwing darts at boards!)

The ultimate topic, of course, is how, if at all, i translates “expert knowledge” (which itself is oftentimes the dependent of vigorous dispute with the acknowledged “experts”) into decision-making past times gifted amateurs, which inwards this context definitely includes enrobed judges (and all other political officials).  It would move insane to facial expression that they run across the standards to move hired to learn the immature most history, philosophy, etc. at a decent university.  But does that hateful that nosotros should merely move tolerant of the grade to which their assertions most what nosotros powerfulness regards as factual matters (or the analysis of a person’s thought, as with Locke) are altogether questionable?  Martin Flaherty wrote years agone most “History Lite,” i.e., the sort of history practiced past times most legal academics and, fifty-fifty moreso, past times judges drawing on historical materials.  Is in that place a “Goldilocks point” betwixt unacceptable “history lite” in addition to an unrealistic demand for “history heavy?  Ditto whatever other academic bailiwick that has wended its agency into legal analysis.

And, finally, given that constabulary schools select on the (monopolistic) line of piece of job of teaching lawyers (and hereafter judges), should those of us who are legal academics pass to a greater extent than fourth dimension inwards unhappy declaration most what (if anything) should move required of all of our students instead of continuing the de facto laissez-faire approach that allows students to select whatever they desire later on the firstly twelvemonth (which, with rare exceptions, focuses alone on traditional legal analysis, addition some law-and-economics)?