• August 31, 2015

The Postradical Legal Generation

Elite law schools, and the court nominees who come from them, have changed

The Postradical Legal Generation 1

Andrew Harrer, Bloomberg via Getty Images

President Obama with Elena Kagan earlier this month

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Andrew Harrer, Bloomberg via Getty Images

President Obama with Elena Kagan earlier this month

When President Barack Obama nominated Elena Kagan to the U.S. Supreme Court last week, he described her appeal in much the same way he has described his own: as a postpartisan figure. Just as Obama and Kagan represent a generation of national political figures trying to be postideological, so too they represent a distinctive generation of figures in elite law schools—as does Obama's last Supreme Court nominee, Sonia Sotomayor.

All three graduated from their respective law schools (Obama and Kagan from Harvard Law School, Sotomayor from Yale Law School) at a time when most of the more-radical members of the faculty had either already disappeared or were losing their last battles. More than that generation, Sotomayor, Obama, and Kagan have avoided major ideological fights and the most polarizing legal issues. Indeed, in the cases of Obama and Kagan, they helped move their law schools beyond the more-polarizing ideological battles.

In that way, all three are part of the law-school "postradical generation." Just as that helps us better understand their careers, the dynamic also helps explain some of the difficulties Obama will have in appointing influential liberal judges.

The law and the law schools that teach it are temperamentally more conservative than the rest of the university. Anthropologists or sociologists do not teach their classes wearing suits, but law professors often do. While students in the humanities might be considered to have dressed up if they attend class in jeans, law students are often caught wearing nothing more casual than khaki pants. The professionalism of the American law school is evident.

But law schools do inhabit a place in the university, even if a conflicted one. So when the chaos of the 1960s hit college campuses, it might have hit law schools less so than the rest of the university, but it still created its share of radical intellectual movements. The students graduating from law schools at that time in many ways broke more from the conventional wisdom than their predecessors had. Some were the equivalent of the Old Left in jurisprudential terms, liberals who believed in the ability of courts and the law to further social progress. More than before, they were radical in their desire to reform existing institutions, but generally not to create too many new ones. Their causes, for example, focused on courts creating new constitutional rights to education or a minimum income, rather than questioning the very concept of constitutional rights.

But there were also the jurisprudential equivalents of the New Left. Foremost were those who created critical legal studies and often saw legal institutions as illegitimate guardians of the status quo. While the Old Left wanted to use the law to push the country in a liberal direction, the New Left seemed to reject the legitimacy of the law in the first place. Many of the leaders of what later became the Critical Legal Studies Conference, like Roberto Mangabeira Unger, Duncan Kennedy, and Mark G. Kelman, were students—or later faculty members—at Harvard and Yale during the late 1960s and early 1970s.

Later often labeled "Beirut on the Charles," Harvard, in particular, faced numerous battles over the ideas of the New Left and the Old Left. It was those battles—and the attempts to move on from them—that played a central role in the careers of postradical figures like Kagan and Obama, and in the history of the law school.

Divisions were sharp at Harvard law in the 1980s. The conservative Federalist Society was created in 1982, and one of the three founding student chapters was at Harvard. In 1986, a conservative member of the faculty, Paul M. Bator, left for the University of Chicago Law School. Bator never clearly indicated why, but he did argue that the effect of critical legal studies on Harvard was "absolutely disastrous." The law school denied tenure to several faculty members associated with critical legal studies, generating widespread protest by students and faculty members. Derrick Bell, the first tenured African-American professor of law at Harvard, was probably more Old Left than New Left, having worked on school desegregation at the NAACP Legal Defense and Educational Fund. When one of the faculty members associated with critical legal studies was denied tenure, Bell staged a sit-in, causing a leading member of the faculty (and later dean), Robert C. Clark, to tell him, "This is a university, not a lunch counter in the Deep South." Bell ultimately left Harvard.

Kagan entered Harvard's law school in 1983 and graduated in 1986. Her reputation as a law student was very much built on the desire to avoid polarizing ideological fights and to focus on common ground. The president of the Harvard Law Review during Kagan's last year, the more liberal Carol Steiker, years later to be her colleague on the faculty, noted that Kagan was "known as having friends across the political divide." Indeed, one of the most important endorsements for her court nomination so far has been from one of the more conservative law students in her graduating class—­Miguel Estrada, years later to be a George W. Bush nominee to the United States Court of Appeals for the District of Columbia Circuit, a nomination derailed by Senate Democrats.

The best evidence of her status as a member of the postradical generation is her time as dean of Harvard Law School. Kagan might have been the most important dean of the school in the past century, significantly changing the institution, but in neither a conservative nor liberal ideological direction. As Obama said when nominating her, "At a time when many believed that the Harvard faculty had gotten a little one-sided in its viewpoint, she sought to recruit prominent conservative scholars and spur a healthy debate on campus." The law school hired, for example, conservatives like John F. Manning and Adrian Vermeule. On the other hand, Kagan also backed the hiring of Mark Tushnet, a liberal law professor once associated with the critical-legal-studies movement, although now less with that movement and more with other forms of liberal legal scholarship.

Kagan also pushed through the most significant changes in the required curriculum in more than 100 years. But again, those major changes were very much postradical. Students would now have to take a class on legislation and regulation, one on problem-solving, and choose a class from a list of comparative and international law courses. Many other law schools had started to require the same classes, which were more to keep pace with the changing legal profession than to achieve particular ideological goals.

Like Kagan, Obama was part of the generation of law students who attended school when the ideological battles were raging; and he played a role in building an institution more sensitive to compromise and moderation than he initially found when he landed in Cambridge.

As Kagan herself said, "By the time Barack got to campus, in 1988, all the talk and the debates were shifting to race." Many of the more-radical members of the faculty were gone, but Obama interacted with those who were left, urging them to pursue a more moderate path. When Bell protested the decision not to hire an African-American woman, Regina Austin, from the University of Pennsylvania Law School, Obama made one of the speeches at a rally supporting her—but a very conciliatory speech, urging protestors to work with others toward finding a solution.

At the same time, he also took courses from scholars like Mary Ann Glendon, later nominated by the second President Bush to be ambassador to the Holy See. Obama heard the former Reagan solicitor general, Charles Fried, speak in defense of gun rights and noted to a friend how he appreciated the fact Fried was a refugee from Communist Czechoslovakia. And when Obama wrote a letter to the law school's student newspaper defending affirmative action, he was respectful of the concerns raised by his law-review colleague (and later clerk to Justice Clarence Thomas) Jim Chen.

The member of the faculty who had the largest impact on Obama was the noted constitutional scholar Laurence H. Tribe, a clear liberal for whom the law student worked as a research assistant. Before Obama arrived on campus, Tribe had argued Bowers v. Hardwick (1986) before the Supreme Court, unsuccessfully contending that the Constitution prevents states from criminalizing private consensual homosexual sodomy. Tribe had also testified against President Reagan's nomination of conservative Robert Bork to the court. But although he was clearly liberal, Tribe was no radical. He is best known for his 1978 treatise on American constitutional law, American Constitutional Law, which summarized and analyzed court cases about constitutional issues. In that treatise and in his other writings, Tribe accepted the legitimacy of the major American legal institutions and used traditional legal analysis to urge courts to move (in moderate ways) to the left.

When Obama ran for president of the law review, the campaign took on the ideological cast of the debates at the school at the time. There was a clearly liberal candidate and a clearly conservative candidate. Obama mediated between the various factions, won, and appointed several conservative as well as liberal students to help him run the review.

Sonia Sotomayor entered Yale Law School in 1976, immediately after several years in which more radical members of the Yale faculty, like John Griffiths, a former student activist at the University of California at Berkeley, were pushed out by their colleagues. While Yale remained liberal—with most of the faculty supporting liberal political leaders and advocating that courts push the law to the left—like Harvard, it was becoming less radical.

Given the timing, and her status as a member of the postradical generation, Sotomayor's law-school career was unsurprisingly more traditional than figures in the period preceding her. When in law school, Hillary Clinton (Yale Law School, 1973) decided not to join the prestigious and traditional Yale Law Journal and instead joined the new Yale Review of Law and Social Action. Eric L. Clay (Yale Law School, 1972), later a federal appellate judge like Sotomayor, was charged with threatening a white professor at the law school. Both were more associated with the radical law-school culture of the time.

Sotomayor, by contrast, was an editor of the Yale Law Journal. Her article for the journal was a technical and relatively dry analysis of the constitutional issues related to the seabed outside of Puerto Rico. After graduating, Sotomayor pursued a fairly conventional path of working for a prosecutor's office and in a corporate law firm.

The stories of the postradical generation are not only of intellectual interest but also affect the future of American government. Obama has been criticized by many for not nominating enough theoretically ambitious and bold liberals to the federal courts. Part of the reason for that dynamic, however, has less to do with politics than with the supply of such theoretically ambitious liberals—particularly law professors.

Many of the more-radical jurisprudential movements from the earlier generations have succeeded in opening eyes to the flaws in the legal system, but beyond that have largely disappeared. The Old Left efforts to push courts to be more aggressively liberal floundered after years of courts dominated by Republican appointees. The New Left efforts by the critical-legal-studies movement and others floundered, in part because, like with the Old Left, their ideas were met with sustained resistance from the elite institutions of the legal system.

The country has moved to the right, so there are fewer law professors who are truly liberals. Many of those on the left today are simply trying to maintain older decisions that took the law in new directions, like Brown v. Board of Education (1954), outlawing separate-but-equal schools, and Roe v. Wade (1973), finding a constitutional right to abortion. Others on the left, who once might have aggressively pursued liberal legal ideas, are now increasingly writing about law from a more theoretical or quantitative, and therefore less practical, perspective—making their writing less related to the issues judges decide and making them less obviously candidates for future judgeships.

And some on the left who write more directly about cases and courts, like Tushnet or Dean Larry Kramer of Stanford Law School, and Dean Robert C. Post of Yale Law School, are now increasingly members of the "popular constitutionalism" movement, who believe that courts should be stripped of all or most of their decisional powers—hardly the pre-judicial profile that one wants.

Those pushing a more aggressive jurisprudential agenda now are more on the right of law faculties. Their writings constituted the scholarship very much behind, for instance, the decision of the Supreme Court in District of Columbia v. Heller (2008), finding that the Constitution's Second Amendment protects an individual's right to bear arms. That decision, whether right or wrong, would have been unthinkable a generation ago, when Chief Justice Warren E. Burger (nominated by President Richard M. Nixon) called such an idea "one of the greatest pieces of fraud ... on the American public by special-interest groups that I have ever seen in my lifetime."

Law schools have changed a lot since Sotomayor, Kagan, and Obama sat in their first classes decades ago. Understanding those changes can help us better understand today's courts—and the legal thinkers presidents may appoint to sit on them.

David Fontana is an associate professor at George Washington University Law School.


1. dmaratto - May 19, 2010 at 07:41 pm

Yeah but one of the most liberal Supreme Court justices of all time, Earl Warren, was nominated by Eisenhower (a republican) and considered a solid conservative choice when he was nominated. So you really never know how a judge will act on the SC until they are there.

2. akprof - May 20, 2010 at 01:41 pm

Gee, dmaratto, Alito and Roberts have performed exactly as I expected them to perform!

3. mothergrogan - May 20, 2010 at 01:58 pm

The thing that gets me about her is not the fact that she is not liberal enough or whatever, but that she has almost no paper trail. Obviously, this is in part because of her desire to be post-ideological. However, I question how it is possible for someone to advance so far in the world of legal scholarship without being a scholar herself. Her five peer-reviewed publications would not merit tenure in my department at a non-elite public university. Why is Obama nominating an intellectual featherweight for the Supreme Court--I thought that was the preserve of Republican presidents?

4. tnciantra - May 21, 2010 at 10:54 am

Professor Fortana is certainly correct that the legal academy is more conservative than that in the humanities but his overview contains errors and omissions. First, he's wrong when he writes that "[m]any of the more-radical members of the faculty were gone" by 1988 when Obama arrived in Cambridge. I don't know who he has in mind but the central figures in Critical Legal Studies remained on the Harvard Law School faculty in the mid-1980's when I was a student there. Unger, Kennedy and Mort Horwitz were (and are) still teaching and other legal academics sympathetic with their positions were very much in evidence and active. What had happended by that point was the denial of tenure for junior faculty perceived to be bradly sympathetic to CLS. As a result, the left was unable to amass the numbers needed to dominate the law school faculty.

What Professor Fontana ignores is the role of the 'law and economics' movement in moving the legal academy right-ward. This development, which applies microeconmic analysis to legal doctrine, is the leading intellectual movement in legal studies in the past generation. Law and economics is decidedly not post-ideological. Its normative positions are entirely consonant with market-based solutions to all manner of political and social questions and in-synch with the logic of market deregulation that has dominated US politics since the 1980's. But in this area, Harvard was behind other legal institutions in the mid-80's. It has since caught up thanks in part to substantial conservative foundation support. Unlike the left, whose scholarship of legal institutions focused on the inherently political nature of legal doctrine and thus lacked a common or central progammatic component, the right's theory was both desriptive and prescriptive. But hardly non-ideological.

5. mlivatino - May 21, 2010 at 02:51 pm

Obama is postpartisan? Obama is postideological? What in God is Mr. Fontana smoking? Where has he been hiding for the last year?

6. inverse_agonist - May 22, 2010 at 07:50 pm

"Post-ideological" = Neoconservative = Neoliberal

This sort of Newspeak implies that there just aren't any alternatives to business as usual. Mr. Fontana is a fellow of the Truman National Security Project. Its board includes Madeleine Albright, who asked Colin Powell what the point of our military was if we can't use it. Leslie Gelb, President Emeritus of the Council on Foreign Relations, also sits on its board.

Their agenda includes promoting the war on terror, maintaining strong intelligence services, and supporting free trade agreements. They describe themselves as "training a new generation of progressives to lead on national security."

Mr. Fontana isn't smoking anything. He's apparently quite good at promoting the view that Bush's policies are "liberal" now that they're Obama's policies. In the world he'd like to see, "progressive" is the same thing as conservative, except that "progressives" admit bleeding obvious things like the reality of global warming, the stupidity of excluding gays from the military, and the fact that unilateralism hasn't served us well in Iraq.

PSYOPS at work. This sort of thing makes liberals vote against their own interests just like the Tea Party does the same for conservatives. The Establishment always wins.

7. agnana - May 23, 2010 at 08:42 pm

I'm interested that neither the author nor the commenters mentions one of the really big things that happened in the interim, namely the collapse of the Soviet Union. For many in my generation who were raised on the left, the failure of Communism was a seminal moment in realizing that markets could in fact produce a society that was (at least somewhat) more just than one theoretically devoted to equality. And the growth of huge middle classes in India and China is in many ways more grist for the idea that markets remain "the only game in town." The "law and economics" movement also flows out of these facts on the ground- something that the anticapitalist left seems not to understand.

8. anglotisa - May 24, 2010 at 06:53 am

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9. cdrlumpy - May 24, 2010 at 12:20 pm

Outside the mainstream, is that the point?

10. rem1600 - May 25, 2010 at 01:50 pm

Reactionary Radicals? The legal academy is so overwhelmingly left-wing that even puny evidence of counterbalance produces reaction from entrenched leftists.

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