THREAD: This is the fourth (& probably last) in a series of long threads written in response to this term’s egregious SCOTUS decisions. One goal of the threads is to shed light on the problematic system-legitimating relationship between elite law schools and the judiciary. 🧵1/
2/ The threads illuminate that relationship by examining public-facing law school articles and press releases about grads and faculty on the U.S. Supreme Court. You can find the previous three threads here:
3/ This thread picks up with a Harvard Law School (HLS) article regarding Stephen Breyer’s retirement announcement.
today.law.harvard.edu/feature/breyer…
4/ The article begins by noting Breyer’s “lifelong connection to Harvard Law School,” predictably highlighting its ties with mainstream influence, power, and status within prominent legal institutions.
5/ An implicit message: HLS is the gateway and gatekeeper to those positions; similar rewards await our students, alums, and professors.
6/ The article then summarizes the portion of Breyer’s retirement remarks where he described what he had most loved about his job. https://t.co/qkjVkyAgqQ (A second HLS story repeats the same remarks here:
today.law.harvard.edu/feature/breyer…
today.law.harvard.edu/pragmatic-just…
7/ Never mentioning the pleasures of being one of the nine most powerful, unelected, life-tenured, actors in the U.S. government, Breyer focused instead on the lesson he learned from his position at the pinnacle of U.S. judicial branch. Watch here:
youtu.be/7vNHHRkHovI?t=…
8/ The lesson: “I sit there on the bench, and after we hear lots of cases,” in “this complicated country” of “[m]ore than 330 million people” representing “every point of view possible” “the impression you get” is “they’ve decided to help solve their major differences under law.”
9/ According to Breyer, this collective deference to law is “a kind of miracle when you sit there and see all those people in front of you—people that are so different in what they think.”
10/ To repeat: Breyer found the best part being a SCOTUS justice was the privilege of witnessing the “miracle” of our system: that despite being in different groups with different points of view, the people have “decided” to turn to law “to help solve their major differences.”
11/ What an uplifting lesson that must be for any legal elite who, like Breyer, has achieved social standing through occupying an influential position in an institution and system that has generally exacerbated inequalities across those very groups: “They like it this way!”
12/ This sort of upbeat account of the legal system is favored among legal elites. Most of the remainder of this thread will describe *two* of the several ways that Breyer’s remarks about the great lesson of serving on the Court is confused and wrong and why that matters.
13/ First, any evidence that groups with “major differences” and “different points of view” resolve disputes in the legal system hardly implies they have chosen to defer to that system; a more plausible explanation might be lack of options and obedience to power. Consider...
14/ Since Breyer joined the Court, our legal system has, among other things, produced world-leading rates of incarceration and inequality and allowed corporate interests to destroy ecosystems, toxify communities, and shove our planet toward uninhabitability.
15/ During his tenure – and especially over the last decade – literally millions of people have explicitly or implicitly protested various elements and outcomes of our legal system, including several Supreme Court opinions.
16/ It’s no doubt true that wealthy and powerful people—both human and corporate—are happy to have their disputes resolved by our legal system, but that’s because they trust the system they’ve captured. @TheFlawMagazine
17/ For those who don’t benefit from the status and standing associated with, say, wealth and whiteness, the legal system is inaccessible, biased, and often a brutal destroyer of opportunity, dignity, lives, families, and communities.
18/ Communities subject to our legal system's selective surveillance, criminalization, and incarceration never “decided to solve their major differences under law.” They have, at most, submitted to power and violence thrust upon them.
19/ Breyer’s story avoids all of that. He does, however, briefly respond to critics who, like me, don’t share his faith that people have “decided to help solve their major differences under law” by saying “Go look at what happens in countries that don't do that.”
20/ He added flourish to that retort by waving his pocket copy of the U.S. Constitution in the air and asserting: “People have come to accept this Constitution and they’ve come to accept the importance of a rule of law.” (That’s the very image that HLS features.)
21/ Breyer thus avoids the possibility that our legal system is unjust and that participation in it may reflect nothing more than submission to power; instead, he invokes the specter of totalitarianism, a bit like a preacher waving the bible and promising hell for non-believers.
22/ Now for the *second* problem with Breyer’s story: he mistakes legal outputs for legal inputs. That is . . .
23/ When Breyer describes the law’s challenge as one of “solving” the “major differences” or conflicts between people or groups, including “every race” and “every point of view,” he’s eliding the role of law in producing and shaping those differences. In other words . . .
24/ Many group-based differences that yield legal disputes are the result of the law itself having previously constructed those differences and encouraged those disputes—including the unjustified material inequalities that heighten intergroup frictions.
25/ Law’s injustice is found, for instance, not only in the barbarically high incarceration rates among Black Americans, it was there in the legal/social construction of race itself and the reinforcing legal web of systemic racism. e.g.,
wwnorton.com/books/the-colo…
26/ Breyer’s blinkered account of the law, allows him to ignore the interaction of law with those systemic webs of oppression and the power disparities that produce injustices. In short, telling the story this way hides uncomfortable truths.
27/ That is the heart of Breyer’s “miracle.” His claim that “people” who disagree about outcomes have nonetheless “decided to help solve their major differences under law” is an invocation of a social contractarian justification of our laws: the people have consented to them.
28/ The social contract story illustrates a common tactic in elite legal storytelling of eliding legally designed structures of subordination and power dynamics that would belie inferences of choice or consent among the subordinated and disempowered.
papers.ssrn.com/sol3/papers.cf…
29/ It’s the mistake of calling a “domination contract” a “social contract”—that is, of failing to see that the social agreement excludes the disempowered groups, making them objects of, not subjects to, the contract. Charles Mills & Carole Pateman:
wiley.com/en-us/The+Cont…
30/ See also Carole Pateman on the “social contract” as a “sexual contract” – promoting patriarchal domination that advances men’s freedom and women’s subjugation.
sup.org/books/title/?i…
31/ and Charles Mills on the “social contract” as a “racial contract” intended “[t]o maintain and reproduce this racial order, securing the privileges and advantages of the full white citizens and maintaining the subordination of nonwhites.”
cornellpress.cornell.edu/book/978150176…
32/ Stepping back, I can now more easily describe the cycle of injustice that Breyer’s seemingly innocuous narrative is cloaking; . . .
33/ (a) The legal system is designed to serve powerful interests and does so through laws that create hierarchy-enhancing structures;
34/ (b) Those structures intensify inequalities that the legal system must, in turn, legitimize and manage (often coercively); and . . .
35/ (c) Key strategies of legitimation include high-status legal actors deploying epistemic authority to advance narratives that hide legally engineered systems of subordination and that focus instead on the consent, choices, or malicious intentions of the subordinated groups.
36/ In short, our legal system unjustly subordinates some groups that it must then keep in line by blaming them for their subordination. (It also, of course, valorizes some groups and keeps them incentivized by rewarding them for their merit.)
37/ Legal elites are socialized to deploy their collective epistemic authority in ways that avoid implicating the law as a causal tool of power in producing social problems and inequalities. That is part of what I mean by the “cult of collegiality.”
38/ The cult of collegiality thus includes an implicit agreement to misconstrue the world and deny the law’s production of power structures and systems that yield inequalities that, in turn, produce the “differences” that the law then “solves” on the other end.
39/ Through norms of silence and culpable ignorance about what we legal elites know or should know about the unjust effects of our legal system, the system’s effects and our role in it are thereby obscured.
40/ In short, I’m suggesting that Breyer tells an inaccurate story about law’s “miracle,” and HLS retells it, because the narrative aligns with system-affirming norms of discourse that reflect a contract among legal elites to justify and maintain existing distributions of power.
41/ To be clear, this is just one tool in a larger suite of reinforcing strategies within our legal system. The law, by design, focuses on individual claims within individualistic doctrines, thus minimizing attention to the deep-rooted causes and systemic consequences.
42/ In fact, dominant legal theories dominate in part because they have that same effect (e.g., law and economics) and are favored and supported by the most powerful interests.
43/ In contrast, legal theories that challenge the law’s legitimacy are marginalized—and are often undermined if they begin to gain too much traction within powerful legal institutions. see
vimeo.com/241232271
aapf.org/truthbetold
44/ I understand that Breyer and his Panglossian takes are not the law’s most urgent problem. Still, I hope I’ve convinced some readers that they exemplify a larger tendency that is part of the problem: the stories we tell about law matter.
45/ I’ve written these threads because, as an insider, I’m angry about the injustices and untruths that the law and legal elites, like myself, have too-long facilitated while claiming to advance truth and justice.
youtu.be/7gUpmS343G8
46/In my view, the legal profession should be striving for laws, legal narratives, and legal norms that are committed to justice and fueled by truth. To quote Breyer, “Go look at what happens in countries that don’t do that.”
47/ In broad terms, the claims in this thread are not especially novel. They’re just an effort to explicate the elements of systemic gaslighting. For those interested in more scholarly versions, this thread is influenced by work that I and others have done, including…
48/ my co-authored work on deep capture, motivated policy cognitions, and justice with @davidyosifon @Benforado @JacobLipton and others.
papers.ssrn.com/sol3/cf_dev/Ab…
49 Charles Mills on “an epistemology of ignorance”: “a particular pattern of...cognitive dysfunctions ... producing the ironic outcome that whites will in general be unable to understand the world they themselves have made.”
cornellpress.cornell.edu/book/978150176…
50/ Olúfẹ́mi O. Táíwò on “elite capture”—the tendency for institutions to be “deployed by political, social, and economic elites in the service of their own interests, rather than in the service of the vulnerable people they often claim to represent.”
haymarketbooks.org/books/1867-eli…
51/ and Elizabeth Anderson on how ideologies can “support unjust institutions by entrenching distorted representations of the world.”
onlinelibrary.wiley.com/doi/abs/10.111…
