In 2012, Richard Fallon wrote an insightful and influential article concerning so-called “scholars’ briefs.” Law professors, who had little-to-no role in drafting the briefs, sign their names, solely to lend their credibility and gravitas to the enterprise. Fallon writes that “many professors compromise their integrity by joining such briefs too promiscuously,” and urges “standards that professors should insist upon before signing amicus briefs that they do not write.”
Early in my academic career, I was barraged by offers to join “scholars briefs” in support of cert petitions, concerning topics in my area of expertise, such as federalism and the separation of powers. There was never any pay offered–merely the opportunity to have my name on a SCOTUS brief. I was not involved in drafting those briefs, though I ensured that any items I disagreed with be removed–or else I would walk away. In hindsight, and after further reflection on Fallon’s article, I regret even joining these briefs.
My policy for the last two years or so has been not to join a brief unless I played a substantial role in writing it–either as the lead author, or a co-author. It is not enough to be given the opportunity to review an already-polished brief, where it is too late to make any meaningful changes. With this philosophy I have turned down a number of opportunities, explaining that unless I am involved with writing it, all I would lend to the brief is my name and credibility. (You can see all of my briefs under the Experience section of my C.V.).
A related phenomenon is the scholars’ letter. Not directed to any court, these documents are framed as open letters to the public, signed by a host of law professors. Why are they written? Presumably because the law professors have some sort of unique insight that the public ought to be aware of. For example, 40 liberal law professors joined an American Constitution Society-backed letter sent to President-elect Trump “laying down a marker” about several important constitutional issues, such as the First Amendment, Roe v. Wade, and “hate-filled speech.” Pam Karlan astutely noted that they were “under no illusion that Trump is going to bother to read a letter from law professors.”
There is also another letter circulating opposing Senator Sessions’s nomination as Attorney General. At last count there were more than 1,100 professors who signed. The professors are also crowdfunding a GoFundMe campaign to print this letter (with all 1,100+ names) as advertisements “in the hometown newspapers of specific senators who are undecided about their vote regarding Sessions’ nomination.” They have now raised $10,714 out of $13,000. (Many of the donations are from “anonymous”–no doubt they are staunch defenders of Justice Thomas’s position concerning the unconstitutionality of disclosure laws). I’m sure soon enough we’ll see a similar letter opposing whoever Trump’s first nominee is to the Supreme Court.
Fallon’s critique about scholars’ briefs applies equally to scholars’ letters. Here, the 1,100 professors who signed the letter had absolutely no role in its drafting. Take it or leave it. To the extent that they all agree with every sentence of the letter, then the statement must be so anodyne that it adds little beyond what the New York Times editorial page has already said. Imagine an actual law school workshop attended by over 1,000 professors–would anything be agreed upon?!. Law professors would never add their name to a law review article they didn’t write. Why are scholars’ letters any different?
I received some flak on Twitter for criticizing the ACS letter. Many of the issues in the letter overlapped significantly with those stated by the Originalist Against Trump letter I joined. I tweeted that the ACS should have reached out to some of the Originalists Against Trump members to produce a joint-letter that would meet somewhere in the middle. It would have had much more resonance than a letter from bunch of Obama and Clinton supporters that are criticizing Trump. There was push-back on Twitter, and they urged that this was not the time for a consensus letter. OK, fine. But these scholars’ letters, signed only by people who agree with each other, add nothing new to the equation, and are little more than press releases trading on the scholars’ reputations, not acts of scholarship. The USA Today’s headline served that former purpose: “Legal scholars to Trump: Abide by Constitution.” At least Tony Mauro’s headline in NLJ was more descriptively accurate towards the latter: “Liberal Law Profs ‘Lay Down a Marker’ on Constitutional Battles to Come.”
The Originalists Against Trump letter was significant, because it was a statement against interest–conservatives and libertarians, who stood to benefit from a Trump presidency (perhaps) were willing to put their credibility on the line to stand up against a candidate we deemed dangerous. Even after the election, I still stand by my statement, although several signatories have had their regrets.
Update: Jonathan Adler offers his thoughts on regret over signing the “Originalists Against Trump” letter:
@jcdevereaux1 @JoshMBlackman it was much easier for some to sign when they were certain he would lose 2/2
— Jonathan H. Adler (@jadler1969) December 27, 2016