"Woke" Lawyering and the Rule of Law Don't Mix

What is a cult? It is a religion without god, or with false gods. To borrow Molly McGrath’s formulation, it is a “fake religion.” On that criterion, today’s brand of progressive politics, known as “wokeness,” is the most influential cult of our age, favored by powerful and well-heeled elites.

Molly McGrath provides an insightful indictment of this pernicious simulacrum of real religion, which has marched through our opinion-making institutions with relentless ferocity. At its center, suggests McGrath, is the concept of the sacred, designating that which possesses “a qualitatively, incomparably higher mode of being.” Sacredness is attained by suffering, sacrifice, and victimhood – in short, by oppression. In assigning this vaunted status, the cult of progressivism focuses on groups, not individuals, and confers incomparable power and authority on favored groups. In McGrath’s words, oppression is “taken to be identity-shaping, authority-bestowing, and sacred-making for members of oppressed categories.”

As with any religious movement, the orthodoxy of progressivism McGrath describes settles moral fundamentals and determines the landscape of good and evil. Consequently, key questions of social order and belief, including those relating to the identity and status of victims and oppressors, of who suffers and who causes them to suffer, are placed at the center of the dogmatic creed. They are thereby elevated beyond legitimate debate and removed from the realm of ordinary politics. Violating the imperatives of that dogma and its elevation has consequences, and they are dire. According to McGrath, those who dare to question or contradict the basic moral tenets of the cult must be harshly punished. They are the scapegoats and sacrificial lambs, made to stand for our sins against the sacred. They are “our blasphemers,” who are “publicly shamed, deplatformed, ostracized, slandered, and (if possible) fired.” There is no mercy, “no rites of forgiveness. . . no statute of limitations” for sins against the creed. Blasphemers must be ejected from polite society, canceled, or destroyed.

That this ideology is destructive to a democratic system of governance should be obvious. But there is one aspect of our democracy to which it poses a particularly powerful threat. That is our system of laws. “No one is above the law” is an oft-repeated principle in the Anglo-American legal world, but universal submission to that precept depends on the law’s fairness, integrity, legitimacy, and proper functioning within a democratic system of government.

How does the ideology McGrath describes influence the operation of law within that system, and the rule of law in general? Relatedly, how has it affected the process of legal education, which is the crucial training ground for the guardians and practitioners of that system? In both these realms, the wokeness cult has ushered in catastrophic changes that are distorting the very nature of the enterprise and undermining its operation. The crux of these developments pertains to McGrath’s observation that, by designating certain categories of people as “sacred and apart,” the cult of progressivism dictates that favored groups “are not to be handled like other people.”  What are those groups? They are, inter alia, non-white minorities (chiefly the “underrepresented” ones), women, immigrants lawful and unlawful, gays, transgenders.  These groups and their members are “special” in being regarded as immune to criticism, protected from contradiction, and above reproach. As McGrath puts it, “There is something disrespectful about criticizing what they say. They are elevated above argument.” (My emphasis). This special status, and the immunity it confers, delimits the category of blasphemy: it defines the universe of critical statements or ideas that are both “ignorant and evil,” and thus forbidden.

The “Woke” and the Rule of Law

What are the implications for our legal system? As with politics, so with law: the cult of progressive wokeness ensures that ideas, issues, and legal interpretations that used to be subject to debate and good faith disagreement are now moralized and placed above legitimate dispute. The only legitimate legal positions and arguments are those that recognize the special status of the aforementioned designated, oppressed “sacred” groups within society. The cult of progressivism dictates that these groups, and any individuals within them, are always victimized by evil attitudes and actions — discrimination, bigotry, racism, sexism — on the part of members of favored groups (mainly white males), or by unfair and unjust societal structures. Regardless of facts, logic, or evidence, any disadvantage or detriments they suffer must be attributed to these causes. To the extent these conditions are legally actionable — and the job of progressivism is to ensure that they are — they must be rectified. Those are the central tenets of the legal department of the cult, which must be indulged without exception. Any aspect or result in the law that is inconsistent with these tenets is designated and banished as evil.

Understanding the dire effects of this brand of progressive wokeness rests on recognizing that the proper operation of our legal system depends on objective, impartial, and intelligible limits on the reach of our laws and the instruments of legal redress, and on respecting longstanding discursive, analytical, and adversarial methods for determining those limits. To put it more simply, the integrity of law depends on impartial standards and fair procedures. Conflicts arise, as they inevitably will in a democracy, not only over what laws should be enacted, but also about how existing laws are to be applied and interpreted. As a rule, a law’s proper meaning, scope, and application are to be hammered out, and ultimately resolved, by rational argumentation within the enforcement arm (the executive, in our democracy), and through the resolution of particular disputes in courts and other tribunals.

The proper functioning of these processes is crucially dependent on long-accepted methods within the Anglo-American system: even-handed and impartial debate, argument and counterargument, recourse to facts and empirical information, and rigorous methods that explore the logical and analytical relation between words and ideas. Although the term “adversary system” is identified most closely with litigation — that is, the process of resolving specific legal disputes between parties primarily through the court system — the adversarial process, which mandates a thorough and systematic review of all points of view, pervades our system of laws from top to bottom and is essential to its proper operation. The ultimate goal of the system is a full, thorough, and skillful airing of all sides of any legal question, both pro and con, with the best arguments brought forth in their most cogent form.

The lawyer’s weighty responsibility in this process was best summarized by one of my learned superiors at the Justice Department, where I worked during the Reagan and Bush senior years. My boss declared that the lawyer’s job within the legal system is to “say what justly can be said” on the side he or she was assigned to represent or advocate for in a decision-making process. Combined with integrity on the part of government officials or judges charged with determining the ultimate outcomes, playing that role ensures that the law achieves justice in the sense of adhering as closely as possible to standards set by duly enacted laws. Here the word “justice” is not used in the partial, result-oriented sense of “social justice”, but rather in the sense of coming to the “right” result under the law as it is written. And the assumption is that each side’s zeal in crafting and articulating its ‘best position’ is vital for ensuring that the system works as it should. When that process works properly, the result is a fair one.

Our system depends for its integrity on these bedrock understandings and precepts. Yet these fundamentals, and the very operation of the adversary system itself, are now under sustained attack. Long-recognized duties of attorneys, and their indispensable roles as members of the bar and officers of the law, are compromised in the service of dogmatic adherence to the so-called “social justice” ethos. Within the legal profession itself, so-called social justice warriors lead the charge by deploying dogmatic weapons of the woke orthodoxy to compromise and undermine the thorough presentation of the full range of arguments and counterarguments upon which the integrity of our system depends.

Legal Education, Deformed

The law school establishment, dominated increasingly by a social justice ethos, is an important player in this pernicious transmogrification. The problem, in a nutshell, is that the cult of social justice warring is fundamentally at odds with good lawyering.  In promoting social justice as the ultimate good, law schools are systematically leading law students away from developing the skills and adopting the attitudes needed to maintain the proper operation of our legal system. By immersing students in the cult of victimhood and identity politics, law schools are turning out lawyers who are ill-equipped to thoroughly understand and ably represent all sides and all aspects of legal questions and disputes.  That failure starts in law schools and continues into the real world of legal practice.

As already noted, the wokeness cult dictates that important issues that were previously debatable are placed above legitimate dispute, and made unquestioned and unquestionable items of faith. This means that law students today are increasingly schooled and encouraged to regard certain ideas or arguments — those considered at odds with the woke paradigm of victimhood, identity politics, and oppression — as not only evil, but as inflicting unbearable distress and upset, and grievous psychological, emotional, and dignitary harm, on victims and on those who are forced to think about, consider, or make them. Woke warriors have taken to asserting that arguments and facts that contradict progressive cult precepts and understandings traumatize and cripple them, threatening their emotional well-being, and fatally compromising their ability to function as people and professionals. It is the law schools’ job and sacred duty to create “safe spaces” designed to protect students from these dire effects. This can only be done by banishing untoward ideas.

But fulfilling these demands — which are more and more heard in the august halls of our best law schools — comes at a grievous price. In pursuit of ideological and psychological “safety”, law students escape exposure to uncomfortable facts, controversial positions, and heretically unprogressive ideas. As a result, they emerge from law school both unwilling and ill-equipped to consider and argue for both sides of important legal and policy questions in a society that is not yet entirely converted to the progressive cult — and never will be! The regnant powers of faculty, deans, and administrators in legal education are thoroughly complicit in this. This situation also holds true both at the graduate and undergraduate level, where these infirmities are indulged and encouraged. At the very least, university authorities don’t second guess or discourage these responses. That would run contrary to the progressiveness wokeness cult!

This is no mere theoretical problem. A growing number of law professors in my school and others have dropped rape and sexual assault from their criminal law courses, including in some cases the required first year course, because woke students find these topics upsetting and “offensive.”  Many students in my courses on social welfare law and policy and conservative political and legal thought have never heard of, let alone read, important conservative thinkers and scholars, such as Charles Murray, Friedrich Hayek, James Burnham, and Edmund Burke. On too many subjects, students are exposed to only one side of important issues throughout their educational career. And despite lip service to the contrary, they are not encouraged to seek out, dig into, and master contrary perspectives that might offend the left-leaning political opinions that prevail in academia today.

These educational trends have real world consequences. Quite a few lawyers and law partners have told me (always “not for attribution”) that a growing number of today’s elite law school graduates are woefully ill-equipped to meet the day-to-day expectations and responsibilities of legal practice. These fledgling lawyers claim to be “emotionally traumatized” by being asked to represent clients and positions that don’t accord with their exacting utopian visions of how society should operate. And they are poorly equipped to explore and vigorously present the best arguments for any position, including their client’s position, that fails to accord with what is “correct.” Finally, it is claimed, they are overly concerned, even obsessed, with monitoring their colleagues’ and clients’ ideological purity, and with complaining about even the smallest violations of an elaborate and constantly morphing code of political correctness. To be sure, law firms are increasingly staffed by lawyers who encourage these “atmospheric” preoccupations, having themselves thoroughly imbibed them. But many others, cowed into silence, look upon these trends with dismay as an unfortunate distraction and an uncollegial exercise in misplaced priorities.

There is no question that the legal profession has always had a cadre of partisans who see law as an instrument for cosmic progress, are determined to pursue justice as they see it, pick and choose their positions and clients accordingly, and refuse to represent anyone they regard as on the “wrong” side. Indeed, those preferences have their place: many laudable changes and advances have been brought about by lawyers who pursue visions of legal and social improvement. Such people often join organizations designed to pursue a defined agenda, thus minimizing the chances they will be asked to advocate for causes and positions they believe unworthy. Yet there was a time when even “cause” lawyers believed, as McGrath puts it, in “old liberal principles like free speech, open inquiry, presumption of innocence, rights to defend oneself and face one’s accuser, religious freedom and toleration and racial non-discrimination.” All lawyers were trained to respect the traditional adversary culture, to honor their worthy opponents, and to treat them as indispensable players in a fundamentally sound system rather than as evildoers on the side of the devil.  Now those conventions and touchstones are under siege, subject to a dogmatic derogation that threatens the very integrity and proper functioning of the legal system itself.

A “Woke” Legal System

That threat has already come to fruition, making significant inroads with ominous implications. Although “cause” lawyers have always existed, so have “hired guns,” who are also a vital and indispensable part of our justice system. The cadre of private attorneys who recognize the signal importance of all sides and all disputants being heard, and who vindicate that bedrock principle through their willingness to represent whatever parties and clients seek their professional help, are increasingly subject to pressure from progressive ideologues in their ranks to refrain from representing the “wrong” side. In a speech in 2019 at the Federalist Society National Lawyer’s convention, Secretary of Labor Eugene Scalia recognized and deplored this trend, noting that it posed a “special threat” to the operation of our legal system and our democracy. In his speech, Scalia observed that

One of the great traditions of the legal profession is to respect the right to legal representation of those we disagree with, and even to undertake that representation ourselves. . . . John Adams described his defense of the soldiers [charged in the Boston massacre] as “one of the most gallant, generous, manly and disinterested Actions of my whole Life, and one of the best Pieces of Service I ever rendered my Country.” . . . [O]n this he was right. It is appropriate, admirable, and necessary for lawyers to take on clients and advance positions that may offend some observers.

Scalia went on to state that “there are growing indications that our most powerful law firms are growing uncomfortable” with the commitment to ensure vigorous advocacy for all sides. He observed that when the Supreme Court heard arguments in a lawsuit challenging President Trump’s cancellation of the so-called DACA program, under which certain young people from foreign countries who entered the United States illegally received forbearance from deportation and other privileges, “approximately 25 large law firms filed amicus briefs opposing the President’s action, on top of the three large law firms representing the plaintiffs.  Not a single major firm filed a brief supporting the Administration.” In the same vein, he noted that in a recent case presenting the question whether Title VII’s prohibition on sex discrimination includes discrimination based on sexual orientation, “around 20 large law firms filed amicus briefs supporting plaintiffs and a broad reading of Title VII; not a single big firm filed a brief supporting the defendant.”  Taking note of a similar imbalance in other highly disputed cases involving “hot-button issues,” Scalia observed that “[e]veryone familiar with the practice of law knows that these lopsided representations have nothing to do with the legal merits of the two cases, or with the absence of lawyers at large law firms who would be interested in representing a client on the other side.” Rather, it is the product of a protective self-censorship. Observing that “our elite law firms are hesitant to let their lawyers get involved in cases that might generate criticism from left-of-center [individuals or clients,” Scalia bemoaned that law firms “no longer pride themselves, as they have in the past, on representing people or positions that may be disfavored in some quarters.” He recommended that firms “push back—firmly” on the pressures to shun unpopular clients or positions that are contrary to currently fashionable progressive principles.

The unwillingness to push back, and to recognize the duty to ensure the vigorous representation of all points of view, is all too common in the current climate and is strongly reinforced by ever bolder and wider attempts to tar and discredit attorneys who line up on the “wrong” side. One sacred commitment of the present-day woke culture is to the practice of racial affirmative action in education, which “right-thinking” people oppose or even question only at their peril.

But the current practice of affirmative action in higher education, and specifically in law school admissions, was shaped by the savvy, skilled, and zealous advocacy of a top flight Washington appellate lawyer, Maureen Mahoney, who was hired by the University of Michigan Law School to defend its affirmative action program before the U.S. Supreme Court in the 2003 Grutter v. Bollinger case. Rumor has it that Michigan called upon Mahoney because she was a conservative insider — someone intimately familiar with, and in considerable sympathy with, the arguments against the legal position she was asked to defend. Based on her political affiliation — she was a lifelong Republican who had served as a law clerk to late Chief Justice William Rehnquist and worked for the Reagan and Bush administrations — it is a safe guess that Mahoney was no great fan of affirmative action.  Yet she readily agreed to represent “the other side” — indeed, it is obvious that she considered it not only her job as an advocate, but her honorable charge as a member of the Supreme Court bar, to say “what justly could be said” on behalf of her client, with the ultimate goal of helping the Supreme Court arrive at the best and most legally defensible position.

Would someone like Maureen Mahoney, from either side of the aisle, take on such a role today? Or would he or she demur, invoking mental distress and psychological trauma, the need for a safe space, and the imperative of protecting victims, and herself, from the other side’s evil and intolerable position? Such a reaction is hardly far-fetched in today’s legal world. And even those who do not profess such intolerance and vulnerability, and who still believe in the old-fashioned principle of everyone’s entitlement to their best defense, are unlikely to risk sticking their necks out on behalf of a politically unpopular position. Witness the reaction to Harvard Dean Ronald Sullivan’s decision to take on the representation of alleged sexual harasser and rapist Harvey Weinstein. After many students criticized and attacked him for his role, Sullivan lost his job as the co-master of Mather House at Harvard College.  Although some legal scholars and commentators came to his defense, many others did not. In contrast, I never recall hearing any lawyer or legal academic — right, left, or center — publicly fault or criticize Maureen Mahoney for defending Michigan Law School ‘s affirmative action program. This shows how times have changed, and not for the better.

In light of these developments, one wonders how the rule of law, which is integral to our rights and our democracy, can long survive. In an atmosphere dominated by woke progressivism and the voracious demands of political correctness, and peopled with gods, devils, sacred objects, despised blasphemers, and above all approved and unapproved positions, the very principles of fair procedure and fair representation are under attack. Our precious system, fragile in the best of times, grows weaker by the day. Let’s hope the cultish forces can be stopped before it’s too late.