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How the Academy and the Mainstream Media Contributed to Polarization

Neal Devins and Larry Baum have written a fine new book, The Company They Keep: How Partisan Divisions Came to the Supreme Court. Their argument briefly stated is that the Supreme Court responds to elites and has become more polarized as elites have become more polarized. I reviewed the book at Balkinization, where I generally praised its analysis but criticized its slighting of the role that jurisprudence, particularly the rise of originalism, has played in the transformation of the Court.

Here I want to emphasize that their book brings home the responsibility that the mainstream media and our elite universities have had in contributing to polarization. Some of my fellow Balkinization commentators on the book not only slight that factor, but put much of the onus on the Federalist Society and Fox News for our ideological climate. But the book makes clear that the Federalist Society arose in response to the fact that the mainstream institutions of law, including the ABA and the elite law schools, were dominated by the left.

The closing of the elite establishment to the right directly led to the rise of an alternative institution—the Federalist Society. When professors at leading law schools in the 1980s conducted debates about the Constitution that largely ranged between different factions of the left, including the Marxist-inspired Critical Legal Studies, it was hardly surprising that students looked to create an alternative forum for conservative and libertarian views. When the members of the ABA evaluation committee abandoned their role as neutral arbiters of professional competence to brand Robert Bork, a former Yale law professor and Solicitor General, unqualified for the Supreme Court, it aided the Federalist Society’s growth as an alternative professional as well as student-based organization

This institutional polarization would have been much less likely to occur had universities embraced greater representation of conservative and libertarian views. Likewise if professional organizations had applied neutral principles. And less institutional polarization would have likely reduced overall polarization. If genuine ideological debates occur within a single institution, people are more likely to moderate their views to persuade the middle. They are also more likely to make friendships that transcend ideological differences, reducing polarization at the personal level.

The story of the mainstream media’s role as a catalyst for new, alternative media is similar. In their otherwise perceptive reviews of the book, Rick Hasen and Linda Greenhouse decry Justice Antonin Scalia’s refusal to read the Washington Post and his substitution of media they regard as outside the mainstream, but fail to reckon with the consequences of the mainstream media’s lean to the left. As Roger Ailes stated in starting Fox News: We found a niche market: half the American people! The way to keep viewers and readers like Justice Scalia would be to have more balanced reporting and editorials.

Perhaps nothing can now be done to create more common fora for debate and discussion, although the Federalist Society does it best by having more ideologically balanced panels than are found at a typical law school symposium. (Here is a recent egregious example of lack of ideological balance from UCLA). But certainly there is little evidence that the mainstream media and our universities are making any effort to become less ideologically uniform. As I have noted before, some professors at leading law schools seem to believe that their schools should in fact aim at left-leaning social justice. Schools also are doubling down on hiring a “diverse” faculty with regard to race, ethnicity, and gender, when that drive will have the predictable effect of making it harder to hire conservative and libertarians. And it is clear from the discussion of this book that many denizens of these ideologically-uniform institutions disregard the contribution that these institutions make to the polarization they deplore.

Reader Discussion

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on April 12, 2019 at 09:08:59 am

Progressives always mistake the reaction to their action as the action. The Left: Getting Newton's Third Law Wrong Since 1900.

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QET
on April 12, 2019 at 10:43:10 am

Well, I don't know QET. Maybe it's related to James Rogers point about averages: "we use group averages to fill in the vast blank areas on the canvass...."

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Anthony
on April 12, 2019 at 10:59:17 am

The final responsibility of academics and journalists is not to give equal representation to the range of opinions on a particular subject of inquiry but rather to seek the truth. Should scientists give equal representation to opinions about climate change, for example, that are demonstrably false? Science is therefore "left-leaning" from the point of view of those who think all opinions are equal. One could say the same about responsible journalism. Moreover, if you think there's been any progress in our views of nature and society over the past three or four hundred years, the truth is left-leaning.

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Robert DeMaria, Jr.
on April 12, 2019 at 11:30:09 am

Where is the Chinese Scalia? He was killed during the Cultural Revolution.
Where is the Russian Scalia? He died in the Gulag Archipelago.
Where is the Muslim Scalia? He was killed in the Iranian Revolution.
Where is the African Scalia? He was killed in the 1990s Congo Civil War.
Where is the Latino Scalia? He was killed in the 1973 Chilean Uprising.

There are no liberal republicans outside of the Anglo world (Israel, England, US, western Canada, Australia). So why should universities that are teaching to all the world's students bring up purely american political phenomenon?

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Christopher
on April 12, 2019 at 13:28:27 pm

The error of progressives is this idea that whatever they believe at a given moment is "the truth". In order to seek the truth, you must first have the humility to realize the separation between what you believe and the actual objective truth. Without that humility, the search for truth--and science itself--is not possible. The progressive fear of allowing criticism of progressive commitments is the exact opposite of the search for the truth or science.

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Fahagen
on April 12, 2019 at 14:00:22 pm

It could just be a coincidence, but in the L&L article today on Florian von Donnersmarck's new movie, we see the following: Seeband appears ideologically committed to the Nazi program and his devotion is closely bound up with his self-conception as a man of science.

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QET
on April 12, 2019 at 18:11:17 pm

This is a humorous comment. Yes, I believe there has been a lot of progress in the last 300-400 years. Economic and material progress thanks to free markets and capitalism. Scientific progress thanks to the search for truth, rather than quotas, and a spirit of free inquiry and free speech, rather than efforts to silence debate on campuses and elsewhere. Greater justice thanks to broad adoption of rule of law values. A more gentle culture, thanks to chivalry and bourgeois culture.

Perhaps "the truth" is actually "right-leaning." Or perhaps the truth has no ideology, but is simply what is true and proven.

As a P.S., I am very tired, indeed, of opinions about climate change that are demonstrably false, which I why I urge Al Gore to return his Nobel.

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Alan
on April 14, 2019 at 17:37:00 pm

Readers who support and encourage the virtue of humility in any search for the truth of things thank you.

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Latecomer

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.