On Wednesday, I was honored to hear Judge Amul Thapar deliver the Story Lecture at the Heritage Foundation. The theme of his lecture is that originalists courts need originalist classrooms. I couldn't agree more. At most law schools, originalism is taught, if at all, as something of a strawman. Professors will introduce it, briefly, and then spend the bulk of time explaining why the doctrine is incoherent. I can count on two hands the number of originalist constitutional law professors in the United States. Law schools are derelict in not hiring more of these scholars. Even if faculties reject originalism, they must recognize that courts are receptive of these arguments, and students need to be trained on originalism.
However, it seems that a different facet of Judge Thapar's remarks made headlines. Judge Thapar offered a proposal of how to ensure that law schools promote originalism.
"Make no mistake: money talks. Only when the taxpayers and donors alike demand it will law schools start to change," Thapar said. "When law schools do change, the hefty price paid for a law degree might actually be worth it, because lawyers will leave law school equipped to practice in today's courts."
Indeed, many legislatures in conservative states are taking a closer look at university curriculums. And several states have established classical institutes within colleges, some of which can confer degrees, to provide students with a different approach to knowledge. But these alternative institutions are unlikely to affect the actual curriculums of accredited law school. Moreover, many conservative donors have halted donations to universities–especially in the wake of October 7.
And to be fair, there are costs to these approaches. If a legislature, or donor, withholds money from a law school, that will have a negative impact on many innocent actors. Law students have little control over what is taught, yet they will likely feel the brunt of any cut in funding. Even originalist professors, a discrete and insular minority, may feel the burn of reduced funding. Still, Judge Thapar seems to support this divestment from institutions that do not teach originalism.
In addition to divestment, there is another approach to fostering change: boycotts. I speak, of course, about the boycotts promoted by Judges Ho, Branch, and others. These judges have declined to hire law clerks from certain law schools based on their policies concerning free speech and anti-semitism. These boycotts are prospective, and only apply to students who choose to go to a school after the boycott is announced. The boycotts are a far more narrowly tailored approach than divestment. Rather than cutting funding throughout a law school, these judges are only withholding a very specific prestige point: federal clerkships. To be sure, both divestment and boycotts harm innocent people. But I think boycotts are far less harmful than divestment, because of their targeted nature.
During the Q&A session, Judge Thapar was asked about the boycotts by Judges Ho and Branch. Here is his answer, roughly transcribed (42:!5):
Thapar: … I appreciate that that's the tack they've taken and that every judge should choose what tact is best for them. I think for me I think speaking out about it's important putting pressure through donors and taxpayers as I mentioned I think is critical the reason is is I don't think as much as you know we may think.
I don't think kids in the military that are going to law school right now are paying attention to what Amul Thapar is saying or any of my colleagues. I think they have much bigger things to worry about about and I don't know that those students should be excluded.
I worry that there's kids like myself that went to law school. I didn't even know what a clerkship was. I'm still the only person in my extended family that went to law school I had no guidance. And I just showed up. I wasn't even a conservative then. I was a nothing right. I was a normal college kid that enjoyed College, played Sports, had fun, probably drank a little too much, and and went to law school.
And I got there and I thought I was going to be interpreting text interpreting law that's just kind of logically, if you have no idea you think that's what you're going to do and then you get there. And it's craziness and a lot of those kids I think either quietly or vocally moved to the right during law school.
And so I struggle with excluding a whole group of essentially students that believe in originalism or want to do originalism to punish their law school now. I'm not saying it might not be effective. I'm not saying the Jim [Ho] and Lisa [Branch] haven't made great strides. I'm saying it's just not the tact I and others have taken because we want to encourage the schools to change we're very vocal about it at the same time we don't want to punish the very students that uh believe in originalism as a result.
Thankfully, as Hamilton explained, judges do not have the power of the purse, so they have no power over the budgets of the states. But judges do have authority over who they hire. Both divestment and boycott will hurt innocent bystanders. If Judge Ho refuses to hire originalist students at Yale, a small number of those elite students will lose a particular line on their sterling resumes. If the Kentucky legislature defunds the University of Kentucky Law School for not hiring originalists, all originalist students at Kentucky would suffer. At this point, then, the only question is about which means you prefer.
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