The Right Coast

April 06, 2004
The Greatness of the Yale Law School
By Mike Rappaport

For those of us who have had the privilege of attending the Yale Law School, it is hard to convey to others what that experience was like. Yet, here, at The Right Coast, we are trying our best to describe the experience by reporting on the communications that we alumni receive from the great institution. Tom Smith has unforgettably described the self-congratulatory Yale Law School Holiday Letter. But it is more than once a year that Yale does its thing.

Consider the most recent issue of the Yale Law Report, a magazine sent out largely to alumni. The main article, by William Eskridge, celebrates the Lawrence decision, which held unconstitutional criminal prohibitions on sodomy. The article does not merely praise the decision, or even note that Yale Law School educated lawyers had written some of the briefs. No, that would be too, well, ordinary. Instead the piece describes the case as “a Yale Law School seminar.” This is not the first time this phrase has been used at Yale, and the thought it conveys is, of course, that the professors of Yale – and indirectly the whole Yale community, since this is a fund-raising document, of course – are instructing the Supreme Court on the right way to govern the United States. Very heady stuff, this. If you are “of the body” – if you are part of the wider Yale community and agree with left liberal principles – then this no doubt appeals greatly to your ego.

Here is an excerpt from the article:
    Even a superficial examination of the Lawrence appeal reveals that the overruling of Bowers v. Hardwick was a Yale Law School seminar. The lower court litigation was conducted by the Lambda Legal Defense & Education Fund, Inc., under the leadership of its legal director, Ruth Harlow ‘86, and Susan Sommer ‘86. Representing appellants Lawrence and Garner at oral argument was eminent Supreme Court advocate Paul Smith ‘79. Smith and William Hohengarten ‘94 teamed up with Harlow and Sommer to write the brief for the appellants.

    Under the supervision of a committee chaired by Mark Agrast ‘85, the American Bar Association filed an amicus brief urging the overruling of Bowers. Other important amicus briefs were filed by [the article then lists various Yale professors and graduates].

    Like the best law school seminar, the one the Yale Law School hosted for the Court was not as much interested in a particular result as in thinking more broadly about constitutional theory, methodology, and principle in this regard. The Yale influence was more subtle and potentially more important in the long run.

    As the various Yale briefs emphasized, constitutional precedents ought not to be lightly overruled. Even controversial precedents must be understood in light of history, practice, and constitutional principle. Many academic believe that Lawrence v. Texas was one of the Supreme Court’s more satisfying opinions, because the overruling of precedent was soberly and persuasively justified, without the overstatement or law office history often found in Supreme Court opinions. We believe its virtues were deeply informed by the Yale Law School briefs filed in that case.
This is pure Yale. Through our great insight, the Supreme Court was taught how not to engage in simple liberal judicial activism. Instead, the Court was taught how to justify that activism through a discussion of principles and history that we at Yale approve of. Perhaps the most extravagant of the claims was this one: The seminar that “the Yale Law School hosted for the Court was not as much interested in a particular result as in thinking more broadly about constitutional theory, methodology, and principle in this regard.” Could anyone really believe that?