The Feminization of American Law
‘Lawless: The Miseducation of America’s Elites’ by Ilya Shapiro; Broadside Books; 272 pp, $29.99
In January 2022, following the receipt of a letter of resignation from 83-year-old Supreme Court Justice Stephen Breyer, President Joseph Biden announced that he would fill the vacancy by appointing a black woman, a move he called “long overdue.” Late that same day, a brilliant young libertarian law professor, Ilya Shapiro, fired off a life-changing tweet:
Objectively best pick for Biden is [D.C. Circuit Judge] Sri Srinivasan, who is solid prog & v smart. Even has politics benefit of being first Asian (Indian) American. But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors?
The next morning, realizing that his thoughts might be misunderstood, Shapiro deleted the tweet. But it was too late. In a few days, Shapiro was supposed to assume a prestigious position at Georgetown University Law Center, but some members of the Georgetown community had already read and shared the tweet. In the ensuing firestorm, Georgetown’s dean suspended Shapiro’s appointment and barred him from campus for four months. Students and even some of his fellow faculty clamored for Shapiro’s dismissal on the grounds that his tweet demonstrated that he was racist and sexist, and that women and blacks would avoid his classes or be made uncomfortable in them.
After four months of purgatory, the dean, advised by Georgetown’s DEI bureaucrats, determined that Shapiro made the tweet before the beginning of his appointment and thus he could not have violated any anti-discrimination edicts that applied to Georgetown employees. The dean cleared Shapiro to join the law school, but made it clear that Shapiro must do everything in his power to avoid similar missteps in the future. Shapiro quite reasonably concluded that he was a marked man, and resigned. Shapiro is now a senior fellow and director of constitutional studies at the Manhattan Institute.
This book is a splendid polemical reflection on his tweet, the reaction to it, his four months in academic purgatory, and the current unhealthy state of the legal academy. It is one of the best antidotes to the “woke” culture that now pervades our law schools, and Shapiro even offers valuable recommendations for restoring legal education to its former glory. It remains in grave doubt, however, whether that laudable goal can be achieved.
Shapiro concedes, as he did immediately after the tweet, that his language may have been inartful. Still, all he sought to do was to criticize President Biden for making an appointment to the nation’s highest Court on the basis of race and gender rather than fitness as a jurist. The point that Shapiro was seeking to make, accordingly, was that if one applied neutral criteria, such as reputation for legal craftsmanship and scholarship, none of the three black women reportedly under consideration was as impressive as Judge Srinivasan. Why, then, were many hundreds of the Georgetown community outraged in their conviction that Shapiro was an irredeemable racist and sexist?
It should come as no surprise that one has to watch what one says (or tweets) on law school campuses, lest one be accused of wrongthink. But why should a simple defense of the principle of striving for excellence in the judiciary result in a promising academic’s termination?
Some insight is suggested by a telling recent exchange between the ever-delightful Senator John Kennedy (R-La.) and a professor at another law school in Washington, D.C., George Washington University’s Professor Mary Anne Franks. Franks was testifying before a Senate Judiciary subcommittee on academic censorship. Sen. Kennedy noted that Franks had written an article in September 2023 referencing two Supreme Court cases: one overturning Roe v. Wade and the other interpreting the Second Amendment as creating an individual right to gun ownership. “Taken together, these two cases demonstrate that the Supreme Court has embraced the Constitution as a tool of racial patriarchy,” Franks had written. Kennedy proceeded to read other racially provocative quotes from Franks, such as, “When the Supreme Court declares that there is a constitutional right to armed self-defense in public, it openly embraces and promotes a culture that privileges white men’s ability to terrorize and kill those that they perceive as threats.” And, “by simultaneously expanding white men’s right to kill and constricting women’s right not to die, this Supreme Court has turned the Constitution into a homicide pact as well.” Kennedy noted that Franks had also written that, “The majority of Americans hate women more than they love anything, including Democracy.”
“That sounds like me,” Franks admitted.
Franks’ views may be extreme, but they are not atypical on elite law school campuses, and they explain why Ilya Shapiro’s tweet was read as sexist and racist.
Over the last 30 years, I have written often in these pages about how legal scholars in the late-20th and early-21st centuries abandoned the notion of objective answers to legal questions and embraced subjective legal philosophies, the core insights of which are that law is simply politics by another name, and legal rules are merely self-serving promulgations of the powerful.
Many women and some men in the now-coeducational legal academy have adopted the ‘woman’s voice.’
But why was the legal academy so receptive to those Thrasymachian notions? I can offer one hypothesis. When I entered Harvard Law School in the fall of 1968, there were 14 women in my class of 600, and Harvard Law didn’t grant tenure to a female professor at the law school until 1972. In 2021, 55 percent of Harvard Law Students were female, and the faculty was 45 percent female. There were similar developments at law schools across the country. There are now more women studying law than men, and while women are not yet a majority of law professors, that day is not far off. Moreover, while women in 2000 accounted for only 10 percent of American law school deans, by 2024 that figure soared to 43 percent.
What are the consequences of the feminization of America’s legal profession? It is politically incorrect to pose such a question; after all, feminist theory now teaches us that gender is socially constructed.
But what if that’s wrong? Psychologist Carol Gilligan led a groundbreaking study into gendered approaches to dispute resolution, finding that little boys and girls approached dispute resolution “in a different voice.” As she put it in 1985, boys speak “about equality, reciprocity, fairness, rights,” while girls speak “about connection, not hurting, care, and response.”
In an even more intriguing observation, Gilligan pointed out that the results of social science research change if they are limited to male subjects rather than both sexes:
If you want to support what has been in the Western tradition since Plato—that is, the notion of a unitary truth, that virtue is one, that its name is justice, that it is part of the sense of one right answer upon which we all, in the end, can agree—then you will select an all-male sample. It is a very interesting thing. The inclusion of women will challenge this tradition and make it impossible to sustain a unitary view.
Gilligan also observed that, in the right environment, men can learn to speak in the “different voice” of women. What this means, I think, is that many women and some men in the now-coeducational legal academy have adopted the “woman’s voice.” They’ve come to believe that objective rules for determining merit do not exist, and that the left’s ethic of “diversity, equity, and inclusion” is better than anything else on offer—and especially better than the uncompromising meritocracy favored by male traditionalists.
No surprise, then, that Shapiro’s tweet was explosive, and one can only wonder whether our Supreme Court, which now consists of five men and four women, will soon decide to jettison the objective search for legal precedent and the rule of law. There is at least one prominent law school dean, Erwin Chemerinsky of Berkeley, who has recently published a book titled No Democracy Lasts Forever: How the Constitution Threatens the United States. In a 2022 New York Times op-ed titled “The Constitution is Broken and Should Not Be Reclaimed,” law professors Ryan D. Doerfler of Harvard and Samuel Moyn of Yale made a similar argument.
Shapiro’s book is a fine contribution that addresses one of the greatest blights to be found at the law schools, the cult of DEI, and he (along with the Trump administration) has wisely advocated for its elimination. DEI, however, is a symptom, not the disease itself. Shapiro titled his book Lawless to suggest that the implications of DEI trample our traditional legal norms of due process, fairness, and justice.
The situation is more dire than even Shapiro suggests, because we are at a point in the legal academy where the very notion of objective legal rules—to say nothing of traditional biblical values and the belief in the rule of law itself—may no longer be widely held. Progressive law professors are now the majority, and to them, the United States is a land of systemic racism, vicious patriarchy, and uncaring capitalism, whose institutions must be radically altered. Shapiro’s little screed is an important contribution toward countering that poisonous view. May it inspire many others!
https://chroniclesmagazine.org/reviews/the-feminization-of-american-law