Supreme Court Justices and the Other Legal Academy

I was listing to  Will Baude and Dan Epps' excellent Divided Argument podcast, where they discussed the recent controversies involving Supreme Court Justices receiving gifts or other emoluments.  The opening hymnal setting of Justice Scalia's Morrison v. Olson dissent alone justifies the cover price.  I wish they had titled their episode "Supreme Court Ethics Controversy: Fooferaw or Argle-Bargle?  That would have been a fitting homage to Justice Scalia's colorful diction.  Instead, they named it Creator of the Stars at Night. 

But most of the episode was devoted to discussions about the various Justices and the ethical controversies arising out of their acceptances of gifts from various quarters.  As is well known, ProPublica provided extensive reporting on Justice Thomas's relationship with a wealthy conservative donor Harlan Crow.  There followed reporting from Politico about an undisclosed land deal involving Justice Gorsuch.  And then, there have been stories from FoxNews about Justice Sotomayor's failure to recuse herself from cases involving her publisher.  Finally, The New York Times did a story on efforts by George Mason University's Scalia School of Law and the Notre Dame Law School to cozy up to the conservative Justices.  

Will Baude had pointed out in an earlier episode that if we are going to question the ethics of Justices receiving gifts from private parties and institutions, looking at the gifts they receive from universities, which are sometimes parties in cases before them, is a good place to start.  That seems a stretch to me.  The Justices, except for Justice Barrett, all attended either Harvard or Yale law schools.  They recruit their clerks from those and other top law schools, and their clerks then disperse to prestigious law schools around the country.  It would be bizarre if they did not maintain ties with their schools and with the people they know at those schools.  And there are myriad ways to distinguish guest lectures and even guest teaching gigs at summer program in Europe from lavish gifts from private donors.  But that is a topic for a different blog.

Still, keeping on brand as a faculty member at what Justice Scalia called a "lesser law school" when he last visited my former lesser law school, the Valparaiso University School of Law, let me propose a way forward.  Despite recent criticisms of the Court, especially from the left, the Court continues to be a very important, if not the most important institution in our legal system.  It makes sense that the Justices should go out to meet with, converse with, and inspire young lawyers-in-training.  But -- and I know you saw this coming -- Harvard, Yale, and the other elite schools need them far less that we do out in the Other Legal Academy.  Our students need to see them as models of professional success.  They need to hear how judges and Justices think about law, the legal profession, and the legal academy.   Getting to meet in person with the people who write the opinions they study in their courses will generate new enthusiasm for the study of law and heighten commitment and grit in students who could use some inspiration at a time when bar passage rates are plummeting in most states.  

Since the Early Republic, the Justices have resisted and resented riding circuit.  But in these times when the reputation of the Court is at its lowest since surveys of such matters first appeared, the Justices, as well as other members of the Federal Judiciary, need to get out and show their faces to students whom they will otherwise never meet.  And they need to deliver a message to those students that will bolster those students' faith and confidence in the profession that they so avidly hope to join.