Academia, Constitutional Law, Courts, Free Speech, Media, Politics

Georgetown Professor Denounces “Lawless” and “Actively Rogue” Justices, Lawyers, and Law Professors

In a series of tweets this week, Professor Heidi Li Feldman has denounced “lawless” and “actively rogue” Supreme Court justices and professors who disagree with her views on the Constitution. She has called for “genuine” law professors not to fall “into complicity with lawlessness” in teaching such subjects. It is the latest voice of intolerance and orthodoxy at a leading law school.
      In the age of rage, calls for radical action from both professors and students have been particularly amplified at Georgetown University. We recently discussed Georgetown Law Professor Josh Chafetz, who went to Twitter to defend “aggressive” protests at the homes of Supreme Court justices, explaining that such mob action should be permissible when “the mob is right.” Then Georgetown University Law School Professor Rosa Brooks appeared on MSNBC’s “The ReidOut” after declaring that Americans are “slaves” to the U.S. Constitution and that the Constitution itself is now the problem for the country. At the same time, the law school showed little support for (and effectively forced out) a conservative colleague, Professor Ilya Shapiro, due to a controversial tweet.
      Denouncing opposing views as “lawless” is merely a way of declaring that your view of the law as the only acceptable view. The support for the Constitution or its core institutions cannot be premised on others yielding to your demands or your values.
      There was a time when such a demand would have been viewed as inimical to academic freedom and free speech on faculties. Today, this intolerance for opposing views is celebrated and echoed at many universities. Indeed, last week my study on the decline of free speech was published with other example of this rising orthodoxy among faculty members (“Harm and Hegemony: The Decline of Free Speech in the United States”).
      It is not enough for Professor Feldman to passionately disagree with the constitutional interpretation of the Court or other faculty. She believes that justices, lawyers, and fellow academics must be denounced as “lawless” and actively opposed to avoid “complicity with lawlessness.” Indeed, she suggests that it is “unethical” not to support or teach such alternative views:
“Law practice, law teaching, and legal scholarship always run the risk of being in service to the unattractive, unethical sides of law: its use for the sake of power rather than for justice, its co-optation by the wealthy, its abuse by unscrupulous government officials.”
She further challenges those who work for institutions like the Supreme Court: “First, lawyers, legal scholars, and law schools have to point out that meekly serving lawless institutions is not actually serving law.” 
      What was equally concerning is this statement:
“Genuine lawyers, legal scholars, and law schools will make central – to their practice, their writing, their teaching – the project of protest against and change to institutions and actors who disingenuously hold themselves out as acting in accord with and on behalf of law.”

So, according to Professor Feldman, a law professor is not a “genuine” academic unless he or she uses their writing and teaching to “protest against and change to institutions and actors who disingenuously hold themselves out as acting in accord with and on behalf of law.” That not just calls for classes and courses to be used for advocacy and activism but suggests that faculty members or faculty candidates who do not make a similar commitment are “lawless” and “rogue.” 

      Professor Feldman’s public diatribe shows why conservative and libertarian faculty have virtually disappeared from many faculties. Most top law schools only have a small percentage, if any, such faculty members. Faculty members often find a myriad of reasons to reject such candidates, including dismissing them as not being intellectually “rigorous.” At least Professor Feldman is more honest and would just declare them lawless and unacceptable because they do not share her views.

Feldman and her colleagues show why polls reflect a rising level of intimidation and self-censorship by both faculty and students on campuses. A recent poll found that 65 percent of students feel that they cannot speak freely on campuses. Another poll at the University of North Carolina found that conservative students are 300 times more likely to self-censor themselves due to the intolerance of opposing views on our campuses.

In order to avoid disfavored treatment, many remain silent in the face of such open intolerance and intimidation. Schools reinforce this chilling effort in various ways, including creating a hostile workplace for those with dissenting views.

This extends to student editors and student government leaders using their positions to retaliate against the exercise of free speech by other students with the support of faculty. We have seen student governments move to block speakers, fellow students, or groups at schools like the University of Illinois, Stanford, Iowa State, Skidmore College, Cornell, Harvard, and other schools. Student columnists have been formally condemned at schools like Georgetown and both faculty and students have sought to eliminate whole publications at schools like Dartmouth as “incubators of hate.”

I support faculty participating in protests and advocacy. I also subscribe to a robust view of academic freedom in protecting even extreme views of faculty members. However, Professor Feldman is seeking to pressure colleagues to use their classes and courses for this purpose. Indeed, she is declaring that faculty must seek to change institutions and “actors” if they are to be considered “genuine” academics. Notably, there has yet to be any widespread condemnation of her intolerant views at Georgetown. Professor Feldman is attacking the very essence of higher education as a place for pluralistic and diverse viewpoints. Yet, there is comparative silence from the ranks of her colleagues. That silence speaks even more loudly than Professor Feldman’s screed.

Here are Professor Feldman’s tweets:

Heidi Li Feldman
@HeidiLiFeldman
With an actively rogue Supreme Court, U.S. lawyers, legal scholars, and law schools have to reckon with how to practice, teach, and understand law without falling into complicity with lawlessness. 1/
12:25 PM · Jul 10, 2022Twitter Web App

Heidi Li Feldman
@HeidiLiFeldman
Replying to @HeidiLiFeldman
Law practice, law teaching, and legal scholarship always run the risk of being in service to the unattractive, unethical sides of law: its use for the sake of power rather than for justice, its co-optation by the wealthy, its abuse by unscrupulous government officials. 2/

Heidi Li Feldman
@HeidiLiFeldman
But in more ordinary times, ordinary legal practice and legal education can grapple with these issues. When one branch of the federal legal system goes lawless, the problem is of a different order. 3/

Heidi Li Feldman
@HeidiLiFeldman
In more ordinary times, we can study and teach U.S. law against a background that presidents, governors, state and federal legislators, and judges on all courts have a basic commitment and aspiration to rule of law and to justice. 4/

Heidi Li Feldman
@HeidiLiFeldman
Ordinarily, there is strength and purpose in teaching, thinking about, and, in legal practice, arguing the failures of judges, legislators, and executives to fulfill requirements of rule of law and justice. We expect an understanding of the failures to have *traction*. 5/

Heidi Li Feldman
@HeidiLiFeldman
With the rise of the Trump-Republican Party, this traction – the ability to argue within a shared expectation of commitment to rule of law and justice – has completely evaporated. Last term’s Supreme Court decisions are just the most recent high-profile evidence for this. 6/

Heidi Li Feldman
@HeidiLiFeldman
During and since Trump’s time in office we saw how, time and again, he and members of his administration completely disregarded basic tenets of rule of law, eg basic due process. We saw his judicial nominees lie under oath in Congressional hearings. 7/

Heidi Li Feldman
@HeidiLiFeldman
Throughout the country we have seen Republican legislators, officials, and judges gut the basic levers of pluralistic democracy by trimming both rights and opportunities to vote and vote meaningfully. 8/

Heidi Li Feldman
@HeidiLiFeldman
Regardless of our areas of legal speciality any ethical study, teaching, or practice of law in the U.S. must now start from the problem of developing and implementing law when so many of legal institutions are in the grips of lawless actors. 9/

Heidi Li Feldman
@HeidiLiFeldman
First, lawyers, legal scholars, and law schools have to point out that meekly serving lawless institutions is not actually serving law. 10/

Heidi Li Feldman
@HeidiLiFeldman
Genuine lawyers, legal scholars, and law schools will make central – to their practice, their writing, their teaching – the project of protest against and change to institutions and actors who disingenuously hold themselves out as acting in accord with and on behalf of law. 11/

Heidi Li Feldman
@HeidiLiFeldman
We have to show and teach that the forms and tropes of law can be used quite skillfully to mask deeply lawless judicial opinions and statutes. We have to show how commitments to individual dignity and pluralist democracy are what make law ethically and politically valuable. 12/

Heidi Li Feldman
@HeidiLiFeldman
Responding to lawless legal institutions and legal actors from within the practice and study of law means being honest about the battle lines and who is on which side. 13/

Heidi Li Feldman
@HeidiLiFeldman
We must remember, teach, and study the practice and thought of other lawyers who deployed law against pseudo-law: the colonial and English lawyers who argued for the America Revolution; Thurgood Marshall and Constance Baker Motley; Ruth Bader Ginsburg; also Gandhi, Fraenkel. 14/

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