I wish I could say, imagine if planes just started falling out of the sky . . . . But that’s been happening for a while now. So imagine if instead of DEI witch hunts or revelations that Boeing management has abandoned safety in pursuit of profit we learned that our nation’s engineering schools kept producing classes of aerospace engineers who just reject the primacy of safety in air travel? Would we not haul the engineering school deans before Congress? Would we not lose confidence in the system? I sure did the first time a Boeing manager chastised me for finding something wrong with the design work coming across my desk.
In the ten years since I fled Boeing’s increasingly abusive and profit-driven culture, I’ve been surprised and amused by my new profession’s mass delusion—delusions. Ignore the legal profession’s adherence to doctrinal tradition and established theory in the face of American Law’s obvious blame for and failure to remedy nearly everything wrong with American society. Let’s tackle a simpler, institutional problem. Given the credentialism that has promoted and enabled many of the professors, judges, and politicians now seemingly hellbent on aggravating America’s problems, I remain baffled and appalled by my profession’s apparent continued belief that our current “merit” pipeline will produce the lawyers, professors, and judges to solve these problems.
Think of all the heinous morons of the Right that hail from the top law schools. Antonin “the Founders tell me to hate the gays” Scalia. John “I just don’t like black voters” Roberts. Neil “bow to the dictionary” Gorsuch. And Ted “are babies racist?” Cruz. All hailing from the hallowed halls of Harvard. Then there’s Clarence “see Ginni—oh and Harlan Crow’s yacht” Thomas. Sam “stop the steal” Alito. Brett—too many of these to pick just one—Kavanaugh. Josh “insurrection fist!” Hawley. JD “lapdog to fascists” Vance. Vivek “wannabe Elon Musk” Ramaswamy. The cream of Yale. And lest you believe this to be a two horse race, try out the University of Chicago’s Robert “what if the Founders were against Brown v. Board?” Bork, or Stanford’s Bill “what if I was against Brown v. Board?” Rehnquist. This is just the beginning! The list of “elite” garbage grows with every Trump administration appointment.
But these are all Republican political operatives, you might object. Surely the measured and bipartisan halls of legal academia promote the best and the brightest. Wrong again! Let’s take three easy and recent examples found with an appaling lack of effort.
Consider Yale’s notorious sex-pest, Jed Rubenfeld, who a few weeks back weighed in on JD Vance’s deliciously stupid take about Federal judicial authority to check executive misconduct (remember, the take so incredibly dumb that I only had to crack open my baby law textbook to demolish it?):
Don’t fall for Jed’s attempt to confuse matters by bringing in military or prosecutorial discretion. JD was whining about bog standard judicial authority to check executive misconduct. So there you have it. Yale’s best—flubbing basic constitutional law questions in defense of Donald Trump’s recent, wildly unlawful (and wannabe tyrannical) seizures of Congressional authority.
Or how about Minnesota Law’s Ilan Wurman and Georgetown’s Randy Barnett. A few weeks back, no less than the New York Times offered the pair the pulpit to offer some bullshit excuse for Trump’s executive order gutting birthright citizenship. Even before that, Wurman was running his mouth about it on Twitter:
We don’t need to beat the dead horse. Prof. Steve Vladek methodically dismantled the order’s foundations here, and Profs. Melissa Murray, Leah Litman, & Kate Shaw (of the Strict Scrutiny podcast), joined by Prof. Kate Masur, demolished Wurman and Barnett’s reasoning and grasp of history here. Though, for my part, I’m not even sure these buffoons are entitled to such gracious substantive rebuttals. We know why the Trump administration seeks to gut birthright citizenship: anti-Latinx racial animus. And we know the practical results of stratifying the human species: American chattel enslavement. So if we pull our heads out of our asses for just a moment, we’ll see that Wurman and Barnett aren’t engaged in some arcane historical inquiry—they’re justifying subordination. Yet because of their varnished credentials, the Times gave their filth a bullhorn.
And, for good measure, let’s check in on Harvard’s Noah Feldman—he of so, so many wonderfully stupid takes over the years. Who could forget his fawning over notorious moron Brett Kavanaugh: Bad Temperament Alone Shouldn’t Sink Kavanaugh, and Kavanaugh is the Last Hope for Abortion Rights. Now that women are bleeding out in parking lots across the nation, surely Noah might realize the error of his ways? Apparently not. Trump is Testing Our Constitutional System. It’s Doing Fine., he wrote for Bloomberg last month. “The president’s flurry of illegal actions have been stopped by the courts. That’s how it’s supposed to work.” That’s funny. I seem to recall Donald Trump’s captured Federal judiciary gutting the administrative state over the last few years, spending more time shackling Joe Biden’s “misconduct” (cough, student loan forgiveness) than Trump’s, and—oh yeah—exculpating Trump from consequences for a botched coup, and for whatever unlawful action he feels like in the future. Stellar reasoning!
All of these people have pristine credentials: good law degrees, prestigious clerkships, posh firm jobs, cozy DoJ or other Federal gigs. Judging by credentials alone, they’re all eminently qualified for their positions. And that’s the problem. These people range from idiotic to malevolent. The credentials have failed. When will we finally acknowledge that a professional pipeline that spews this garbage is fundamentally broken?
Sure, American law schools also produce good people. Though, it’s not at all clear that’s what they’re designed for. For one, the $240,000 student loan bill does a damn fine job of recruiting students who might have once looked favorably toward the lower pay of public interest into the employ of bougie law firms servicing (ahem) serving the rich and powerful.
For another, law school is first-and-foremost a concentrated brainwashing session in the pontifications of centuries of landed, Anglo-Saxon, Catholic-then-protestant men. And there’s no use pretending law school grades and transcripts separate the wheat from the chaff. You have to be smart enough to get it, but dumb enough so that the entire self-contradictory artifice of the law doesn’t drive you mad. Sure, in mundane cases, we can evaluate law students’ “rational” and “objective” application of various rules. But pretty quickly thereafter, we run into serious problems. It’s not just about female and black and brown students struggling to comprehend the corpus that overtly contradicts their lived realities, although that is certainly part of it. It’s more fundamentally about the impossibility of “rationally” applying irrationality. It’s about trying to figure out how to apply the pleading standard in Federal District Court (how detailed the facts have to be to make out a violation of law) when the rule is that “it’s gotta be plausible” and the Supreme Court’s primary example of implausibility is the most damned plausible thing you’ve ever heard: that FBI Head Bob Muller and Attorney General John Ashcroft were all in on the Federal government’s secret round up and detention of Muslim men in the aftermath of 9/11. It’s about wrapping your head around the fact that the bare desire to harm a group damns a law restricting white hippies from getting food stamps or stripping civil rights protections from LGBTQ folks in Colorado, but it won’t stop Jackson, Mississippi from closing the pools rather than racially integrate them; won’t stop Alabama from executing black men wildly more than they do white; and won’t stop any of Trump’s obviously racially animated measures against Latin American or Muslim immigrants. There’s supposedly a distinguished legal rule in there, but a) it’s stupid, and b) it’s made up by white supremacists. So truly, if you think hard and broad enough about most legal questions, the whole thing falls apart. And unless you realize that, law school grades can’t tell you whether someone is dumb enough to buy it, actually believes the bullshit, or can suppress intelligence for the duration of a three-hour exam.
But set all this aside and pretend that law schools graduate genuinely good people in comparable numbers and with comparable credentials to the reactionary ghouls (& without shackling the good ones to too much debt and without shifting the center of debate too far to the right). For every Sam Alito Yale produces, we also get one Sonia Sotomayor. That still, I submit, isn’t a very good deal!
Don’t get me wrong. Justice Sotomayor rules. But the law isn’t a tit for tat balancing act. Building is a lot harder than tearing down. She can’t clean up all of Alito’s bullshit once it gets out any more than the Strict Scrutiny Podcast can extract Wurman and Barnett’s bullshit from potentially millions of New York Times readers. No one can.
Yet even that’s beside the point. The real damnation of this law-school credentials consensus is that the Sotomayors are being used to launder the credentials of the Alitos. Because some school happened to produce a good lawyer, we have to pretend all the jackasses are qualified. And so, in the name of this unreflecting credentialism, we have to debate the validity and historicity of shackling our understanding of our Constitution to the drivelings of enslavers, whether brown people are allowed to be born in this country, whether insurrection in defense of enslavement was, and whether Donald Trump now wields unconstrained, dictatorial authority—instead of merely discussing and laughing at the sociopathic delusions of these white supremacist reactionaries as the zoological curiosities they are.
Of course I’m bitter. I find myself continually on the wrong side of the credentials line, perennially unemployed no matter how hard I work. Not prestigious enough undergrad. Good, but not good enough, law school. Wrong clerkships, apparently. I couldn’t get a job for fifteen months after clerking at the Federal trial court in San Francisco. Sure, some of this was my fault. Though, by fault, I mean that my last employer (a small, regional law school) sent me packing after I suggested to the conservative snowflakes in my Constitutional Law class that treating their gay classmates with dignity in public and restraining from murdering trans kids in bathrooms was neither: a) an imposition on their religious beliefs, nor b) reverse bigotry. And so now I find myself sitting in a basement in the shitty middle of nowhere wondering why the fuck I bother when, no matter how hard I work, absolute dipshit morons still run not just my profession, but the United States, all while paying off student loans that have kept me employed barely two-thirds of the time.
Should my personal investment temper my contempt? Perhaps. Does it? Absolutely not. Because I’m still an engineer. When the plane falls out of the sky, I don’t get to play pretend, I don’t get to stand there sputtering about sound theory, twiddling my Ti-89. I judge by results. Because every day I look out my window to see misery, poverty, and malingering racial division, violence, and disparity—the abject failure of American law and the profession built on credentialism that elevates good people, squishes, and Confederate-apoligists alike. And mostly, because this January the state forty-five minutes from my former-school passed a resolution calling on the United States Supreme Court to strip my students of their equal dignity. I’ll take my apology cards in the form of a check.