75 Years of Law Professors as Pundits

It’s an interesting coincidence that part of last week’s oral argument on the Affordable Care Act occurred exactly 75 years (to the day) after the United States Supreme Court issued its opinion in West Coast Hotel v. Parrish.┬áMost of you probably already know that, in upholding a Washington state minimum wage law, the Court’s 5-4 decision in West Coast Hotel snuffed out some of the outrage that had generated the momentum for FDR’s “court-packing” plan.

The ACA and Roosevelt’s proposal are tied together in that both pose fascinating legal questions. Moreover, the ongoing dialogue regarding the role(s) that law professors can, should, and do play in shaping public opinion–sparked by the active engagement of law professors in the ACA challenge–mirrors a similar conversation that surrounded the debate over the court-packing plan.

As I’ve related elsewhere (in an article that I wrote while a law clerk, containing ugh-did-I-write-that passages that make me cringe as I read them today), the debate over the court-packing plan served as a coming-out party for the American law professor as a figure of some consequence in popular legal debates. In the early months of 1937, as Congressmen mulled over the proposal, national and local newspapers alike related law professors’ views regarding the plan. This attention was somewhat of a novel experience, at least for law faculties outside of the greater Cambridge area. Then, when it came time for Congressional hearings on the bill, both supporters and opponents of Roosevelt’s plan wheeled out law professors to testify; the clear impression being, law professors’ thoughts on the matter might actually mean something. (In all, more than a dozen law professors would give testimony either for or against the proposal.)

These events sound pretty passe today, but that’s because we’re used to seeing law professors on the nightly news, being asked for their views on the controversies of the day. Sources from 1937 reveal a “Who, me?” quality to some law professors’ reactions upon being asked for their opinions. The popular interest in their views forced these professors to a reckoning about whether they were true scientists, looking inward to their library laboratories as sources of legitimacy and prestige, or whether their position not only accommodated, but perhaps required and even benefited from, more direct involvement in popular debates.

Unsurprisingly, Harvard Law School entertained the most robust conversation regarding the propriety of public commentary regarding the court-packing plan. In a meticulously recorded faculty meeting that took place on March 8, 1937, professors such as Felix Frankfurter, Henry Hart, Samuel Williston, and others laid out the cases for and against public pronouncements by the law faculty on controversies such as the one that surrounded Roosevelt’s plan.

The parties rehearsed just about every angle in what remains an ongoing debate. ┬áThe professors discussed whether law professors should try to shape the law through petitions and media-friendly sound bites, or limit their input to more “thoughtful” commentary such as law-review articles; to what extent, when speaking publicly, law professors should downplay or emphasize their institutional affiliations; and whether law professors should speak publicly about topics that fall outside of their area of expertise.

In all, the faculty engaged in a fascinating and prescient conversation. Writing to a friend after the fact, Frankfurter described the discussion as nothing less “an effort to canvass the function of the School, the role of the Faculty, the reconciliation of our responsibilities to the School with our status as citizens.”

Though the parameters of the debate have shifted a bit, I don’t know that we law professors have moved very far forward from 1937 in understanding our “proper” role–and perhaps we never will, given the inevitable differences of opinion on this subject. One might review an interesting series of recent blog posts elsewhere on this general topic (here, here and here), or Walter Olson’s discussion of legal academia, then and now, and decide for one’s self whether and to what degree the conversation has progressed.

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