Proper judging requires the application of the law, and fortunate is the judge who has mainly good law to apply.
A now common left-wing defense of the imbalance of right and left in the academy is that the academy tends to be left-liberal because it rewards innovative thinking whereas the right is hidebound and defends the status quo. Here for instance are some of the comments of a law professor on a reprinted version of my piece, The Embedded Left-Liberal Assumptions of the Legal Academy.
Universities attract intellectuals who are willing to entertain new ways of thinking. Conservatives, by definition, are predisposed to think about things the way they have always been thought of. “Gimme that old time religion. It’s good enough for me.”
Elsewhere this critic identifies those on the right as protective of the status quo and thus less intellectually interesting than those who want to change the world. With respect, this dichotomy between the intellectual left and right is such a caricature that it provides yet more evidence of the dire need for ideological diversity so that academics might actually learn something about the political right.
Most of the classical liberal and libertarian right is devoted to reforming the status quo. School choice, colorblindness in governmental action, entitlement reform are all policy ideas strongly associated with the right. They hardly represent today’s status quo and yet they are relatively few exponents in the legal academy of these and other transformative ideas that are prevalent outside it.
And originalism, the interpretive theory embraced by many on the right, is at least in part a theory of law reform. While many originalists believe that originalism has had some previous influence on the Court, almost none think it has sufficient influence today. Moreover, originalists are constantly refining and reticulating the basic ideas of originalism. And if it is objected that some of the right’s reform ideas have antecedents in history, that is surely true of the left’s as well. Indeed, “new” ideas in almost any subject except the hard sciences are at least in part a reworking of old ideas. That is the element of truth in Alfred North Whitehead’s dictum that all philosophy is a footnote to Plato.
And it is hardly fair even to argue that conservatives (as opposed to libertarians or classical liberals) are satisfied with the world as it is. Indeed, those most dissatisfied are often traditional conservatives, because they believe that the traditions necessary for human flourishing are being dissolved by various contemporary trends, such as progressivism and technological change. At meetings of the Tradition Project, one finds more true radicals than among the conventional thinkers in many faculty lounges.
And even the defense of the status quo can be intellectually engaging. The status quo is too seldom given the defense that is its due, given the constraints of the world and the unintended consequences of policy changes. This may not be the best of all possible worlds, but most changes will make it worse. We need more naysayers in the academy.