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Antonin Scalia’s Successor

February 20, 2016

The death of Mr. Justice Antonin Scalia is a great loss at a time when the American people will elect a new President. But, American jurisprudence has been in crisis for many years.

As a young graduate student studying political philosophy, I had to demonstrate competence in three other areas. Constitutional Law was an easy choice because decisions of the U.S. Supreme Court address legal and philosophic issues. I often thought that we took too narrow a view of the qualifications of Supreme Court justices by selecting them from the community of attorneys.

Many of my colleagues in political science who are specialists in Constitutional Law are equally qualified to sit on the Supreme Court of the United States. None, to my knowledge, has sought appointment to a federal court, so their appointment to the Supreme Court isn’t going to happen anytime soon.

That’s too bad, because American law schools have been in decline for more than forty years and now feature legal “scholars” who are very much to the Left of Bernie Sanders and Barack Obama.

Why is that?  I asked two of my friends who know  first hand the condition of American law schools and here is a summary of what they told me.

My instinct is two-fold. First, law profs are simply academics and have drifted to the political Left just like other academics. Over the past several decades the study of law has become more and more part of the academy and less of a trade school. So those who join the faculty of law schools are really just academics who have chosen this field instead of history or literature. They do that, in part, because teaching in a law school pays better than teaching in a Political Science Department.

Second, the radicalism of the 1960s had a distinct impact on law different from the rest of the academy. Law has become a distinctive vehicle for social change. So, contra Tocqueville, law is now seen as an instrument for social reform not social preservation. Abortion, criminal justice reform, the elimination of faith from the public square, and now Same-Sex Marriage are all part of this–the recognition by elites that law is uniquely leveraged for bypassing the electoral process of American democracy more than any other element of the academy. So, for example, the standard “template” for a law review article always must contain a section at the end that is essentially, “What is your proposal for change/reform?”

I’m afraid their assessment is true, so even if the late James McClellan had taught at a law school as opposed to the University of Alabama, Emory University or Hampden-Sydney, he would have encountered hostility from his “colleagues” usually reserved for criminals.

What this means in practical terms is that there are no Antonin Scalia’s in waiting for appointment to the Supreme Court. We live in times lacking greatness and must endure mediocrity for awhile until intellectual conditions in American higher education change.

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