Of Legal Scholarship and Speaking Your Truth

OPENING DISCLAIMER: 

In addition to apologizing for the not-so humble brags in the following post, I also want to state clearly that, given our heinous and scary current events, this personal tale of legal scholarship is "small potatoes" at best. But Mike, Neil, and a few guest bloggers are doing a tremendous job bringing sanity to an insane world, and my current need is to express my truth, which happily is also the point of this post. But I do realize that these are desperate times and maybe this post is ill-timed. If so, no worries, this blog will return to normal programming soon.

Also, whether the Court is a real court or not, this is not the time to question its authority, and nothing in this blog post should be taken to suggest otherwise.

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On a cold winter day in early 2011, I put the finishing touches on a 50-page essay arguing that the Supreme Court of the United States does not take prior law seriously enough to be considered a court of law, and the justices do not abide by precedent in a sufficient enough fashion to be labeled judges. Throw in life tenure and an unclear Constitution almost impossible to amend, and the justices are more like politicians who don’t run for office than judges of law. I said this to my non-lawyer wife and remarked that no one is going to believe my thesis, but I believe it with all my heart. 

She asked me if there was anybody I could send the essay to who could give the piece a good read and I could trust. I responded probably not. I was expecting the following reaction: "What the heck do you mean the Supreme Court is not a court?"

I did say that there was one person who might, just might, be a little sympathetic--then-Judge Richard Posner. But I had never met him, heard rumors that he could be quite cranky, and that he was an elitist with little patience for the foolish. I told my wife that was too scary a proposition, But she pushed and pushed, said I had nothing to lose, and so despite my great fear and trepidation she convinced me to send it to him.

Around 5:00 PM, I sent the essay to Judge Posner by e-mail with an obsequious apology for bothering him. Somewhere around midnight he wrote back to me having carefully edited the essay, asking questions in the margins, and wondering if I was willing to speak on the phone that week to discuss the ideas in more detail. I was blown away.

Two points about this initial interaction with Judge Posner. First, as people who read this blog know, it was the beginning of a long and close relationship that resulted in numerous trips to Chicago, jointly written essays, and years of incredible conversations that I will treasure for the rest of my life.

Second, what he did for me that day and later was not something I could take personally because virtually everyone who sent Judge Posner their work, I have since learned, received the same kind of feedback and level of attention. This post is not about Judge Posner, but the world should know how incredibly generous and supportive this man was (before he got sick) to people who sought his help.

Around 18 months later my book “Supreme Myths: Why the Supreme Court is not a Court and its Justices are not Judges," was published by a mid-level academic publisher because the elite academic publishers were not interested in this crazy idea. Part of that process was so awful it was almost funny.

Within days of each other, my book proposal was rejected by both Cambridge and Oxford (in fairness, Cambridge did publish my second book). Oxford said that my idea that the Court is not a court was too crazy and out-of-bounds to be taken seriously, while Cambridge rejected the manuscript on the grounds that the legal realists and critical legal scholars had already said most of this, and thus there was nothing particularly new in my book. 

I must admit that I found it amusing (and of course frustrating) to hear that my thesis was at the same time too conventional to add anything new to the dialogue about constitutional law and too wild and crazy to be taken seriously. Talk about a rock and a hard place!

In any event, I did a few speaking engagements about the book, but it mostly landed with a thud. Most of my colleagues and friends were supportive but also said “you kind of knew people would not believe this." 

As the years went on, however, the non-partisan idea that the Court does not act like a court began to attract a little more attention and by the end of the decade was being taken more seriously than I ever imagined. All of which brings me to the events of the last year and the point of this blog post.

A law professor I met on Twitter who teaches in Manchester, England wrote on social media that he was absolutely shocked that my thesis about the Court was not "universally accepted" by everyone! Somehow, at least in one scholar’s mind, my thesis had moved from crazy to something closer to “of course it’s not a real court.” 

Around the same time, I received a wonderful and flattering invitation to guest teach a class at a law school in Cork, Ireland because of my “well known” thesis that the “Supreme Court is not a court.” I'm writing this blog post the afternoon after I taught that class. To have my book taken seriously across the Pond was incredibly rewarding,

And one last not-so-humble brag. In 2023, I was a bit shocked to be invited to be on an AALS (the law professors' national annual convention) panel on precedent and the Court with a hall-of-fame line-up (excluding me). They had of course authored numerous books but the only one mentioned during the short introductions was mine. 

The audience’s reaction surprised me. In the past, when that book was mentioned as part of my bio, there was always a little shuffling and murmurs like, “say what now?” This time, however, the audience, full of people I knew and people I did not, almost gave looks of approval but definitely looks of recognition: “Oh you’re that guy.” And then Professor Richard Fallon of Harvard Law School who was the first speaker began by discussing my book (which was not on the agenda) and explaining where we agreed and where we did not. 

I wrote Supreme Myths after approximately two decades teaching constitutional law. I knew that most people would not accept the thesis. But, even after my book proposal was rejected by publisher after publisher after publisher, and even after it landed with a thud, and even after many people in my profession thought I was crazy, I could sleep at night because I communicated my truth as transparently as my skills allowed. At the time, I thought at least I did that.

We live in a world, as Professor Jack Balkin has written, where “off the wall arguments” can move to “on the wall” if enough energy and skill is applied. I lament this truth for the world of judging, but I appreciate it greatly for academics. It is almost impossible to say something truly original about constitutional law (or most legal topics) that is persuasive. But if your truth is original and you believe it (after all the work is done), speak it. No one can ever take that away from you.

But there is another point about legal scholarship I wish to make. In 1991, my first year of teaching, it was extraordinarily difficult for anyone teaching constitutional law at non-elite law schools to get attention from the more prominent among us or the media outside our local communities. Back then most national voices discussing constitutional law were housed in just a few schools.

It is no longer the case, however, that to be heard and taken seriously one must teach at an elite institution, nor do we have to rely on student-edited law reviews, which (despite anonymous review as part of the selection process in some of these journals) give a huge edge to professors at elite schools to get our work noticed. So, to the young academics who may be reading this, I urge you to recognize that for your ideas to be taken seriously you no longer have to reside at an Ivy League institution, and that your truth, as you see it, is valuable to express regardless of whether anyone else believes you. This is not the place to identify all the ways legal scholars can get their work noticed these days but the alternatives the Internet opened up for folks have changed the landscape dramatically for academics who do not have Harvard, Yale, etc., letterheads to open doors.

And who knows? Maybe someday a law school in an entirely different country far, far away will ask you to share your ideas with them. But even if not, speaking your own truth in your own way is, more often than not, reward enough.