What should we make of the judges boycotting Yale Law School?

Before I answer, some background.

If you’d asked me 12 years ago, I’d have said America’s lawyers supported free speech almost universally. Today, if I look past all the controversies, I still think that’s mostly true.

But the controversies are bad: speakers being shouted down at law school events; scholars suspended or fired; student groups at Berkeley Law announcing that they will no longer host speakers who support the existence of Israel; and so on.

And there has been a parade of bewildering scandals at my own alma mater, Yale Law School: the police called to escort speakers from the building to protect them from student protestors; plans to deny financial aid to students who work at allegedly discriminatory religious nonprofits; administrators persecuting a conservative student group and threatening a student’s career over the allegedly offensive words “trap house.” (I had to look it up, too.)

Judge James Ho of the 5th Circuit Court of Appeals has had enough, and he announced last month that he will no longer hire clerks from Yale. He was soon joined by Judge Lisa Branch of the 11th Circuit and a dozen anonymous judges who believe Yale Law no longer protects free speech.

Aren’t these judges fighting against cancel culture by canceling a law school?

Well, kind of. And if I were a federal judge, I doubt I’d join them. But before we’re too critical, we should understand the problem the boycotters are trying to solve.

Perspective: Why academia is a breeding ground of cancel culture
My road to cancellation

Here’s a fun fact—at least if you went to Harvard or Yale: from 1972 through 2016, not a single presidential election passed without a Yale or Harvard alum nominated to a major-party ticket. (The list: Sargent Shriver, Gerald Ford, George H.W. Bush, Michael Dukakis, Bill Clinton, George W. Bush, Al Gore, Joe Lieberman, John Kerry, Barack Obama, Mitt Romney, Hillary Clinton.) Joe Biden did not go to Yale Law School, but his son Hunter did.

The Supreme Court is also a Yale-Harvard affair; currently the two law schools claim four justices apiece. In the past 40 years, only a single Justice was appointed who never attended Harvard or Yale. (It’s Amy Coney Barrett.)

And the famous people are only the tip of the iceberg. Look below the waterline, and you’ll see half the Supreme Court’s clerks coming from Yale and Harvard law schools, and a third of America’s law professors.

The judiciary, the White House counsel’s office, the legal advisors of executive departments and congressional committees, the law thinkers at think tanks, the blawgers, the top lawyers at top firms — these people form an elite layer of legal minds that collectively produces the dominant legal culture, deciding what is thinkable and sayable at the highest levels of legal controversy.

Nearly all of them have been shaped by Harvard and Yale, either attending Harvard or Yale themselves, or having mentors and peers who did, or at least studying ideas that Yale and Harvard played important roles in developing.

Originalism? First articulated by Yale Law professor Robert Bork and spread by the Federalist Society, which held its inaugural conference in 1982 at Yale.

Critical race theory? An offspring of the critical legal studies movement most famously associated with Harvard.

When institutions like these go bad, sooner or later we all feel the consequences.

So, if you’re a judge alarmed by intolerance and bigotry taking over the heart of the legal academy, what can you do?

The boycotters’ answer: ostracize!

Condemn, call down bad press, and use your little bit of market power to punish Yale Law students for their association with the school that did the bad things.

After all, every time the judges hire a clerk from Yale, they confirm the school’s prestige and help it attract students. If Yale is trying to put the whole legal profession in an ideological straitjacket, shouldn’t the judges withdraw their support and tell students to do the same?

If that answer sounds familiar, it’s because we’ve heard something similar from the purveyors of cancel culture themselves.

You can’t stop people from doing evil things, says the canceler, but you don’t have to associate with the ones who do. And if enough of you call them out, you might deny them a platform. You might separate them from the powerful institutions that enable their bad behavior. You might hurt them enough to discourage others from following their example. In a word, you might hold them accountable.

It works sometimes. It may even have worked at Yale, slightly, despite the small number of judges involved. After Ho’s boycott hit the news, Yale released a statement touting its commitment to free speech, and some progressives aren’t happy about it.

So, cancel culture gives you influence. But at what cost?

Although everyone in the legal elite is influenced to some degree by Yale and Harvard, the reverse is not true — not everyone who goes to Yale or Harvard is a world-shaping elite. Most of them are just lawyers, people who will spend their careers in a public defender’s office or advising large companies on the minutiae of securities law.

And during a judicial clerkship, not much time is spent on hot political issues. For the most part, clerks are just clerks: researching case law, reviewing evidence, puzzling out whether some drug dealer’s sentence should be 60 months or 48.

But now these aspiring just-clerks and just-lawyers are being asked to take sides. By going to Yale Law School, future students will be siding with Yale and against the boycotting judges — even though there are a hundred good reasons for going to Yale that have nothing to do with the controversy.

By clerking for Ho or Branch, even though the work has nothing to do with the boycott, students will associate themselves with the judges’ criticism of Yale.

Either decision will be on their permanent record, something they might get canceled for if they catch the wrong person’s attention. I’ve already seen conservative websites announcing plans to ostracize any lawyer who enrolls at Yale after this year.

I suspect that particular bit of ostracism won’t stick, but still, normal people looking for a normal life want nothing to do with this sort of thing. How many will simply wash their hands of it all and abandon the profession to the activists?

How many law students of differing views will fail to befriend each other, for fear of guilt by association? Or because, thanks to ideological segregation, they simply never meet?

As to the judges themselves, their impartiality will be doubted. I don’t believe the doubts will be justified, but even so, how many progressive appellants, when Ho or Branch rules against them, will wonder whether this publicly conservative judge gave them a fair appeal?

These are the costs of cancel culture, even genteel cancel culture like the judges’ boycott, even cancel culture in a good cause like free speech. It leads to division, distrust and the politicization of institutions that have important apolitical work to do.

Maybe sometimes it’s worth it — maybe sometimes society can afford the costs. But in our divided, distrustful, hyperpoliticized day, I have my doubts.

Alan Hurst is an attorney in Salt Lake City. His opinions are his own and do not represent the views of his firm or his clients.