Preface by Bari Weiss:
You are by now highly aware of the phenomenon of institutional capture. From the start, we have covered the ongoing saga of how America’s most important institutions have been transformed by an illiberal ideology — and have come to betray their own missions.
Medicine. Hollywood. Education. The reason we exist is because of the takeover of newspapers like The New York Times.
Ok, so we’ve lost a lot. A whole lot. But at least we haven’t lost the law. That’s how we comforted ourselves. The law would be the bulwark against this nonsense. The rest we could work on building anew.
But what if the country’s legal system was changing just like everything else?
Today, Aaron Sibarium, a reporter who has consistently been ahead of the pack on this beat, offers a groundbreaking piece on how the legal system in America, as one prominent liberal scholar put it, is at risk of becoming “a totalitarian nightmare.”
Politics now determines your access to legal representation:
The adversarial legal system — in which both sides of a dispute are represented vigorously by attorneys with a vested interest in winning — is at the heart of the American constitutional order. Since time immemorial, law schools have tried to prepare their students to take part in that system.
Not so much anymore. Now, the politicization and tribalism of campus life have crowded out old-fashioned expectations about justice and neutrality. The imperatives of race, gender and identity are more important to more and more law students than due process, the presumption of innocence, and all the norms and values at the foundation of what we think of as the rule of law. …
Critical race theory, as it came to be called in the 1980s, began as a critique of neutral principles of justice. The argument went like this: Since the United States was systemically racist — since racism was baked into the country’s political, legal, economic and cultural institutions — neutrality, the conviction that the system should not seek to benefit any one group, camouflaged and even compounded that racism. The only way to undo it was to abandon all pretense of neutrality and to be unneutral. It was to tip the scales in favor of those who never had a fair shake to start with. …
At first, the conventional wisdom held that this was “just a few college kids” — a few spoiled snowflakes — who would “grow out of it” when they reached the real world and became serious people. That did not happen. …
Then 2020 happened. All of sudden, critical race theory was more than mainstream in America’s law schools. It was mandatory. …
Trial verdicts that do not jibe with the new politics are seen as signs of an inextricable hate — and an illegitimate legal order. At the Santa Clara University School of Law, administrators emailed students that the acquittal of Kyle Rittenhouse — the 17-year-old who killed two men and wounded another during a riot, in Kenosha, Wisconsin — was “further evidence of the persistent racial injustice and systemic racism within our criminal justice system.” At UC Irvine, the university’s chief diversity officer emailed students that the acquittal “conveys a chilling message: Neither Black lives nor those of their allies’ matter.” (He later apologized for having “appeared to call into question a lawful trial verdict.”) …
“I got into this job because I liked to play devil’s advocate,” said the tenured professor, who identifies as a liberal. “I can’t do that anymore. I have a family.”
Other law professors — several of whom asked me not to identify their institution, their area of expertise, or even their state of residence — were similarly terrified.
Nadine Strossen, the first woman to head the American Civil Liberties Union and a professor at New York Law School, told me: “I massively self-censor. I assume that every single thing that is said, every facial gesture, is going to be recorded and potentially disseminated to the entire world. I feel as if I am operating in a panopticon.”
This has all come as a shock to many law professors, who had long assumed that law schools wouldn’t cave to the new orthodoxy. …
Bureaucrats are the problem:
The problem has come not just from students, but from administrators, who often foment the forces they capitulate to. Administrators now outnumber faculty at some universities — Yale employs 5,066 administrators and just 4,937 professors — and law schools haven’t been spared the bloat. Several law professors bemoaned the proliferation of diversity, equity, and inclusion offices, which, they said, tend to validate student grievances and encourage censorship. …
Go woke or else:
A Harvard Law professor told me that students face “social death” if they buck the consensus. Students at other law schools — including Yale, NYU, Boston College, Georgetown, and Northwestern — told me much the same thing. “You want to have friends, so you don’t want to say anything controversial,” one Georgetown Law student explained.
At Boston College Law School this semester, a constitutional law professor asked students: “Who does not think we should scrap the constitution?” According to a student in the class, not a single person raised their hand.
Those students and organizations who do dissent often encounter a tsunami of hate. …
“Law schools are in crisis,” [Professor Kate Stith] told me. “The truth doesn’t matter much. The game is to signal one’s virtue.”
Different laws increasingly apply depending on your race, despite what is written in the law books:
We don’t need to speculate about how temper tantrums in New Haven will reshape American institutions. The ideas underlying these outbursts have already spread to boardrooms and government agencies.
Last year, NASDAQ demanded that companies listing shares on its exchanges meet racial and gender quotas. Uber and Postmates waived delivery fees from black-owned restaurants. Montana and Vermont gave non-white residents priority access to Covid-19 vaccines.
Some high-profile initiatives have been blocked — for example, the Biden administration’s attempt to prioritize minority-owned restaurants while doling out pandemic relief. But the legal guardrails that once ensured against this sort of tipping of the scales are coming undone. …
In practice, several attorneys said, that meant a company with a majority-white board could be penalized for something that a company with a majority-black board might not be. The government might even block a merger if the resulting conglomerate would be insufficiently diverse … Jobs, plants, investments, market share: all of it was on the line. …
No legal representation for “bad” people:
“Partners are being blindsided by associates who they think are liberals in their own image,” an attorney in Washington, D.C., told me. “But they’re not. The associates want to burn the place down.”
Lawyers at top law firms in New York, Washington, D.C., and Los Angeles said they fret constantly about saying the wrong thing — or taking on the wrong client.
“It’s much worse than McCarthyism,” Alan Dershowitz, a professor emeritus at Harvard Law, told me. “McCarthyism was a reflection of dying, old views. They were not the future. But the people today who are imposing litmus tests for who they represent — they are the future.” …
Law firms have been known to avoid unpopular clients — Big Tobacco, for example — but the scope and frequency of these evasions have increased, dozens of lawyers interviewed for this story agreed. That’s partly because young lawyers … see representing someone as tantamount to endorsing them.
“It used to be that most lawyers could work for Catholic hospital system even if they were pro-choice,” a recently retired lawyer told me. “But now people just say, ‘I oppose this client, so I can’t work for them.’” (The lawyer had planned to stay at his law firm — one of the largest in the US — for a long time. He told me he retired in 2020 after the firm’s culture became “simply unbearable,” with younger associates excoriating him for being “old and white, and part of the reason we have systemic racism in America.”)
Law firms also worry about losing their corporate clients, which, like many American institutions, have grown more stridently ideological in recent years. “I knew of and heard of clients protesting cases we were taking,” the recently retired lawyer said. “If you were going to do a gun rights case, you would incur the wrath of other clients.”
Since 2011, law firms have been pressured to drop or turn down a long list of clients: fossil fuel companies, foreign universities, a GOP-controlled House of Representatives, employers challenging Biden’s vaccine mandate, and, of course, Donald Trump.
These pressures — both internal and external — have had a chilling effect. If defending anti-vaxxers can cost you business, law firms reason, imagine the blowback of defending a transphobe or a racist. …
Another lawyer, who specializes in First Amendment litigation, described being forced to turn away a client with far-right views because the firm thought that any association with the client — even if the claims advanced were meritorious — would be bad for business.
The problem, Strossen said, is that rights mean nothing without representation.
Mob rule. Outrages will follow. Then what?