Michael C. Dorf

Justice Scalia Suggests that the Legal Academy is Out of Touch: Is He Right?

By MICHAEL C. DORF
Monday, March 8, 2010

Last week, the Supreme Court heard oral argument in McDonald v. Chicago, the most closely-watched case of the current Term. On behalf of his client Otis McDonald, lawyer Alan Gura is asking the Court to hold that the Second Amendment right to keep and bear arms applies not only against the federal government, but also against state and local governments.

As I explained in an earlier column on the McDonald case, the Court has applied most of the provisions of the Bill of Rights to states and their subdivisions via the Fourteenth Amendment's Due Process Clause. Yet the main thrust of Gura's argument relies on a different provision of the Fourteenth Amendment–its Privileges or Immunities Clause, which, since the 1872 Slaughterhouse Cases, has been treated as having almost no legal significance.

Although it looks as though Gura will likely win the case, even Justices who were sympathetic to his cause were vexed by his tactics during the argument, deeming them better suited to a law school faculty workshop than to the Court. In particular, an exchange between Justice Scalia and Mr. Gura went as follows:

JUSTICE SCALIA: . . . why are you asking us to overrule . . . 140 years of prior law, when you . . . can reach your result under substantive due [process]? I mean, unless you are bucking for a . . . place on some law school faculty.

(Laughter.)

MR. GURA: No. No. I left law school some time ago and this is not an attempt to . . . return.

JUSTICE SCALIA: What you argue is the darling of the professoriate, for sure, but it's also contrary to 140 years of our jurisprudence. Why do you want to undertake that burden instead of just arguing substantive due process, which as much as I think it's wrong, . . . even I have acquiesced in it?

(Laughter.)

Justice Scalia was simply injecting a bit of comic relief into a tense oral argument, but underneath his joke was a more serious charge, one that he and other judges have made repeatedly for some years now. They complain that law professors produce scholarship that has no practical value to judges who must resolve hard cases. If a legal theory is "the darling of the professoriate" and thus a fit subject for a law review article that will earn its proponent a tenured faculty position, Justice Scalia implies, it cannot have any practical utility.

Is Justice Scalia right? In this column, I contend that the answer is mostly no. With respect to the McDonald case, Justice Scalia himself, more than the professoriate, is responsible for the fact that a lawyer arguing an extraordinarily important case presented a theory that runs contrary to a 138-year-old precedent, rather than relying on well-established law.

Judicial Disparagement of Legal Scholarship

The oral argument in McDonald was not the first time that Justice Scalia has publicly equated academic interest in some approach to law with practical irrelevance. From my perspective, the most salient previous example occurred in the 1996 case of Janklow v. Planned Parenthood. There, to emphasize that Justice Stevens had taken a view without legal support, Justice Scalia noted sarcastically that Justice Stevens had cited "no less weighty authority than a law-review article" I had written. By implication, Justice Scalia was saying that a law review article (whether written by me or any other professor) is no real authority at all.

Other judges have recently expressed similar sentiments. At a 2007 gathering at Cardozo Law School, seven judges of the U.S. Court of Appeals for the Second Circuit declared legal scholarship to be essentially useless to them. Chief Judge Dennis Jacobs was bluntest. "I haven't opened up a law review in years," he said. "No one speaks of them. No one relies on them." Liberal and conservative judges alike shared the concern. Judge Robert Sack acknowledged that the courts do occasionally cite legal scholarship, but added that they "use them like drunks use lampposts . . . more for support than for illumination."

What is the source of judicial disdain for legal scholarship? The general view among judges is that law professors concern themselves with esoteric theory, rather than the nitty-gritty of offering solutions to hard legal questions. D.C. Circuit Judge Harry Edwards fired the leading salvo for this position in a 1992 article in (ironically enough) the Michigan Law Review.

Judge Edwards denied that he and other judges were demanding "wholly doctrinal" legal scholarship, that is, articles in which law professors pretend to be judges. "Rather," Judge Edwards wrote, "a good 'practical' scholar gives due weight to cases, statutes and other authoritative texts, but also employs theory to criticize doctrine, to resolve problems that doctrine leaves open, and to propose changes in the law or in systems of justice. Ideally, the 'practical' scholar always integrates theory with doctrine."

That was and remains a fair definition of practical scholarship, and even Judge Edwards acknowledged a legitimate place for impractical and inter-disciplinary work, so long as the legally-trained academics engaging in the latter also have the relevant qualifications in some other discipline. But he stingingly stated, "Our law reviews are now full of mediocre interdisciplinary articles. Too many law professors are ivory tower dilettantes, pursuing whatever subject piques their interest, whether or not the subject merits scholarship, and whether or not they have the scholarly skills to master it." Ouch!

With respect to interdisciplinary work, I would report in defense of the legal academy that things have improved considerably since 1992. As a result of changes in appointments and tenure practices, today many more law professors writing about law and economics hold Ph. D.'s in Economics, while many more legal historians now hold doctorates in History. The ramping up of credentials in allied fields answers the charge of dilettantism, although it may exacerbate the core problem that concerned Judge Edwards. Economists and historians (as well as philosophers, sociologists, psychologists, and so forth) will rarely focus on precisely the sorts of issues that judges find most urgent, even if these scholars are also lawyers.

The Real Culprit in McDonald: Justice Scalia's Textualist Philosophy

So, is the legal academy's increasingly interdisciplinary nature to blame for the the McDonald lawyers' reliance on the esoteric "privileges or immunities" theory? Did the history-trained law professors simply view the case as an opportunity to rummage in the Nineteenth Century archives to unearth new evidence about that period?

Hardly. By far the more important factor has been the pronouncements of the judges themselves, especially "textualists" like Justice Scalia.

Under the standard approach, the Fourteenth Amendment's prohibition on state deprivations of "liberty" without "due process of law" implies that some aspects of liberty–including most aspects that are singled out by the Bill of Rights–must receive substantive protection. In a case like McDonald, for example, the petitioner argues that he is substantively entitled to own a handgun; he does not argue that he is entitled to some special procedure for proving whether he has a handgun. Thus, the Due Process Clause–which is most naturally read as protecting procedures, not substance–is an awkward vehicle for applying the Bill of Rights to state and local governments.

Justices and judges who believe that text should play a critical role in legal interpretation have made that point relentlessly. As one prominent textualist, U.S. Court of Appeals for the Seventh Circuit Judge Frank Easterbrook, has said: "The Fourteenth Amendment contains an equal protection clause, and a due process clause, but no 'due substance' clause. The word that follows 'due' is 'process.'"

Likewise, Justice Hugo Black, who used to pull out his copy of the Constitution during oral arguments, was the leading champion of the view that the Privileges or Immunities Clause does much of the work of incorporating the Bill of Rights. He based that conclusion on his reading of the history of the adoption of the Fourteenth Amendment, but he was clearly driven by his hostility–on textualist grounds–to the very idea of substantive due process.

Over roughly the last quarter-century, the leading self-proclaimed textualist has been, without a doubt, Justice Scalia. Almost single-handedly, he has changed the Supreme Court's practice of statutory interpretation and, as he has explained on numerous occasions, he also tries to apply his textualist approach to constitutional cases. Moreover, his closest methodological ally on the Court, Justice Clarence Thomas, has repeatedly shown a willingness to abandon precedents that he regards as too far out of step with the text and original understanding of the Constitution.

Thus, one can hardly blame Mr. Gura for fashioning an argument that relies on textual grounds that appear to avoid the pitfalls of incorporation via substantive due process. In doing so, he was chiefly trying to appeal to textualists like Justice Scalia. That he was assisted in the endeavor by some law professors only belies the claim that academics have their heads in the clouds. If Justice Scalia finds the privileges-or-immunities theory unwelcome, he has only himself and his textualist sympathizers to blame for inviting it.


Michael C. Dorf is the Robert S. Stevens Professor of Law at Cornell University. The second edition of his book, Constitutional Law Stories, is now available. He blogs at dorfonlaw.org.

Ads by FindLaw