A provocative topic (for some of us) from the Wall Street Journal Law Blog. There is the stereotype, which I have run across with some (ignorant) family relations: You just have to teach X hours a week? The WSJ blog is a little less off-the-mark: “They teach a few hours a week, host office hours for an hour a week, and spend the rest doing whatever else they do out of students’ sight — write law review articles and blogs, attend conferences, interview potential colleagues and, well, frankly, we’re not entirely sure.”

Now, to be sure, law professors are unlikely to die prematurely from excessive physical exhaustion or emotional stress. Moreover, if the term is intended to mean that people will do the least they can get away with, there are some who probably are “lazy.” Of course, in that last quality they are hardly different from some individuals in any other vocation. It is even possible, though much more dubious, that there are more lazy law professors than lazy people in some other groups. That would be most plausible when compared to neurosurgeons, but much less so when compared to other pedagogues or to government workers, union members, and entertainers.

But I do not believe that to be an accurate description of law professors as a group. While moving from the individual to generalization of the group is always problematic, I will start with myself. The WSJ description is itself problematic, with normatively-freighted phrases such as “a few hours,” “an hour,” and “doing whatever else they do.” First, I typically teach 8-9 hours in the classroom each week during the academic year. Those are medium to large classes. So the teaching load is not insignificant. My colleagues do not teach that kind of full schedule, so it is fair to say that some of them could readily teach a heavier course load than the more typical 5 hours per week without suffering exhaustion. But that is not the extent of the classroom commitment. I have taught these subjects for quite a number of years. Yet, I still need to review the cases and materials before each class. This easily adds, say, 6 hours per week.

Second, I hold office hours 3 hours per week, in light of the large number of students I teach. Around exam time, I increase my availability further. Most of my colleagues have a comparable number of office hours.

Third, I have administrative responsibilities on committees and as faculty adviser to student groups. Including faculty meetings, these responsibilities probably take up an average of about 3 hours per week, sometimes more, though usually less. That work is drudgery.

Those are the most open and notorious hours. They are the tip of the iceberg. Class topics don’t learn themselves. I teach in the areas of business law (agency; partnerships; corporations; securities), constitutional law, and legal history and theory (including jurisprudence). Constitutional law, especially, is prone to new applications and interpretations. That requires a constant keeping abreast of new developments. Reading advance sheets, law review articles, books, and blogs soaks up a lot of my time. Now, some folks might say that is leisure. True, I find (most) of those readings interesting, but they still take up time. They are still work, and I find that I have far too much to read and far too little time to read it (as I stare at 7 books piled in a stack in front of me).

Then there are the incidentals of classroom work: Writing and grading exams. Law professors have to write the exams and read every student essay answer from beginning to end. At least half the final must be essay. No teaching assistants permitted for those tasks. Again, I take those tasks seriously. Writing one final exam will take all or almost all of a day. Reading and correcting essays takes about 45 minutes per essay, as I make lots of comments. Not all professors take that kind of time or go into such detail, though I believe that professors owe their students that attention and guidance. I grade close to 300 finals during the academic year.

Moreover, those who work in a cubicle (or at any other job), don’t work for eight hours straight (or even four hours). Studies have shown that an employer is lucky to get four hours of real work out of the typical employee during an eight-hour day. That is to say, shopping or gambling online doesn’t count as “work.” So a forty-hour work week does not mean forty hours of actual work each week.

When I grade papers, those are hard hours. I take breaks to rest and refresh my mind. Even with breaks, a mind-numbing boredom threatens to set in after reading thirty or forty similar answers. As far as in-class teaching, it is physically and mentally exhausting, though in a different manner than grading papers. Plato described the erotic element of philosophy. Without taking this too far, there is an erotic element both in experiencing knowledge and in teaching. When a class goes well, there is a sense of culmination and consummation. Mostly mental, to be sure, but with a physical aspect, as well. The better the class goes, the more that sense. And the more the need for a mental and physical refractory period. Put another way, a one-hour class takes a lot more than one hour.

There are also the extra exam and course review sessions with students; the moot court judging (both the first-year students’ competition and the upper division honors program); the panel discussions for student groups or for one’s colleagues; attending lectures, seminars, or academic conferences; various receptions for alumni, prospective students, and current students; letters of recommendation for worthy students and academic assistance for those in trouble.

Finally, there is the writing part of the job. Many of my colleagues write a law review article every couple of years. I tend to write shorter pieces more frequently (I get bored with a topic once I have done the basic research). Also I write a blog, which is partly a creative outlet, but partly related to my work.

Some professors might hide behind tenure to do little work. I suspect that few do, though, at least at law schools. I know that I like to be productive. I like the intellectual challenge. I consider it my obligation to be as prepared and informed as I can for my students. All of those take time and effort if done conscientiously. I suspect that my colleagues feel the same.

The great advantage of being a law professor is flexibility. I do not sit in a cubicle from nine to five. It is easy for me to take off an afternoon to do personal things. But I also work until late at night and on weekends, as the need arises. But flexibility in work schedule does not mean that work is not done. Just because I am not in class does not mean I am not working, any more than the fact that a basketball player is only on the court a few hours a week does not mean he is not preparing for his game. Or that an actor who appears a couple of hours a night in a play is not working on his lines or other aspects of his craft.

Another point a critic might raise is that law professors “get the summer off.” Yes, and no. Most law professors do research for their publications during summer. Some teach as visiting professors or at the school’s programs overseas. I teach during the summer. Indeed, the special two-year program in which I teach some classes, requires so many hours in the summer that July and August are the two busiest months on my schedule. Yes, like others, professors do take vacations, though I have not taken anything longer than ten days as far back as I can remember.

A different question is whether law professors are overpaid for what they do. That is an intriguing and, ultimately, unanswerable query. Certainly we are paid far more than a lettuce picker for far less backbreaking work. On the other hand, we are paid far less than someone who can play basketball well. I look at that question as follows: Law professors could certainly teach a few more classes for their pay, perhaps at the expense of some publishing. But we earn far less than most of us could have earned had we become (or remained) practicing attorneys. Most law professors come from a fairly thin layer of law students in the upper echelons of well-known law schools. Those students are much desired by prestigious law firms. They have six-figure salaries as beginning associates that rise, not infrequently, to seven-figure partnership draws. If they work for the government, they are likely to rise to the upper levels of bureaucracies. They typically earn impressive amounts of money. Many law professors made a trade-off in exchange for a lower salary. It is that comparative independence in performing one’s job, the flexibility of life-style, the intellectual challenge and the joy of knowledge, and the opportunity to help students become lawyers (together, I’ll admit, with the prestige and satisfaction that brings) that is the attraction of being a professor.

Being a law professor is a wonderful career. With certain qualifications, such as faculty meetings and grading exams, it is personally very satisfying. More than most vocations that I can imagine, it provides that fulfillment and sense of accomplishment, characteristics of a life well-lived, that Aristotle and other Greek ethicists called eudaimonia. But, as the Greeks warned, eudaimonia requires effort and commitment. So, becoming a good professor (and it truly is a continuous ”becoming”) requires those two ingredients. I would reject the notion that law professors as a group are “lazy,” as it accuses them of lacking that essential human striving to excel.

The President has been making the rounds preaching the virtues of spending within one’s income and saving for the future. If that sounds schizophrenic, it is, coming on the heels of his reckless budget. In making his point, Mr. Obama in effect dismissively refers to Las Vegas as a frivolous and wasteful use of money. This being his second such dismissive remark about Sin City, the reaction came forcefully. Even Harry Reid told Obama to knock it off. But it was Las Vegas mayor, Oscar Goodman, who was most forceful. Accusing Obama of having a psychological problem and being a slow learner, Goodman told Obama that he was not welcome in Las Vegas unless he straightened this matter put quickly. Ouch! And Goodman is not a Republican. Republicans don’t win political races in Vegas. The President caved quickly.

The curiously-named Yid with Lid takes a look at Obama’s collapsing poll numbers and concludes that a significant contributor is the budget. Those numbers, especially the 17% rate of strong disapproval over strong approval does not bode well for Mr. Obama or the Democrats to whose necks this millstone will be tied.

Instapundit (law professor Glenn Reynolds) declares that the recent Tea Party convention confirms that the movement is the U.S.’s third Great Awakening. Unlike the first two, which were religious-based revivals in the 18th and 19th centuries, this one is secular.

Some feminists react against Tim and Mom Tebow’s pro-life, Focus-on-the-Family sponsored Superbowl commercial by claiming it approves violence against women. That’s quite different from the way feminists reacted in 2008 when an ad was produced that showed and advocated violence against Sarah Palin.

Vaccines do not cause autism. The British medical journal Lancet published a study in 1998 that purported, on the basis of a mere 12 cases, to show such a connection. Since then, many studies have shown there is no connection, while none have supported the 1998 study. Investigative reporters have since uncovered that the author of the study was working on a rival vaccine and was paid off by trial lawyers to find the connection he “found.” Lancet has known this for several years, but only recently retracted its earlier study. What is it with British “scientists” and scare-mongering based on fraud? Vaccines can cause bad reactions in a few people, and there are some good reasons to weigh decisions about a few of them carefully. But, overall, failure to have children get vaccinated is hugely irresponsible. As someone who had a lot of the childhood diseases for which there are now vaccines, I can vouch for the fact that whooping cough, mumps, and measles are no walks in the park. Oh, and don’t get medical advice from morons.

As the furor around the President’s nigh-on $4 trillion FY 2011 federal budget with its $1.5+ trillion deficit continues, it is important to keep in mind what is Mr. Obama’s fault and what is not. It is not Mr. Obama’s fault that the country is in a recession. Nor is it Mr. Obama’s fault that unemployment has gone up, or even that it has reached 10%, according to one measure (17%, according to another), different numbers according to yet others. Nor is it Mr. Obama’s fault that there is a broad asset devaluation that is eliminating froth, a devaluation that has both a short-term and a long-term component. Nor is this year’s (FY 2010) or next year’s (FY 2011) deficit entirely, or even mainly, the fault of Mr. Obama. Nor was last year’s (FY 2009).

With the disclaimers in favor of the President out of the way, let me be clear (to borrow a phrase from the press-anointed great orator) that I am not joining him in saying that those conditions therefore are the fault of his predecessor. Indeed, one aspect of Mr. Obama’s responsibility for the degree of current economic problems is his habit of blaming his predecessor rather than getting on with it. More about that later.

Still, Mr. Bush is to blame for some of the current misery. The increased federal funding for education and the drug prescription programs, along with other non-defense and non-national security items, enlarged the size of the federal budget significantly during his tenure. The tax cuts were not the problem, as they, predictably, increased federal revenue. Federal revenue, adjusted for inflation, did not go down; federal expenditures went up. Even the wars were essentially funded, with the FY 2007 deficit (pre-recession) dropping to around $160 billion. Many of us on the Right opposed Bush’s spending programs (even though the prescription plan ended up costing less than we had feared). As an aside, it is entirely unconvincing for Mr. Obama to rail about the fiscal irresponsibility of Bush’s prescription drug benefit when his own proposal is to expand it and to pay for that expansion in some undisclosed fashion. Adding to the budgetary strain of Bush’s compassionate conservatism was Congress’s profligate spending, including during 6 years of Republican hands on the spigot. Bush’s unwillingness, as a bargain for Congress’s support of his foreign and national security policies, to exercise his veto until the Democrats took over Congress in 2006 exacerbated the fiscal irresponsibility.

With the recession swinging into full force in 2008, deficits went up towards the end of FY 2008. Revenues dropped due to the slow down in economic activity and the financial panic, while federal spending increased, including the first portion of TARP loans to the banks. Still, the deficit at the end of FY 2008 was under $500 billion. With the economic inertia moving in the direction of recession, those deficits clearly would have increased, no matter whether Bush or McCain had been President in 2009, rather than Obama.

Looking at the recession itself, rather than the deficit, to the extent we are seeing the result of an unsustainable asset bubble, Bush is also partly to blame. So are Greenspan, Clinton, both Congressional delegations, and various bureaucracies, such as the SEC. On the deficit front once more, Bush, to his credit, tried to reform Social Security to bring its future costs under control, only to be demagogued by the Democrats and the media to the point where these people plus enough politically spineless Republicans (who typically lost their seats in 2006 and 2008 anyway—Chris Shays, are you listening?) derailed his proposals.

On the asset front, Bush and members of his administration many times warned about the problem of sub-prime loans, especially those under laws to pressure banks into lending to increase home ownership among poor and certain racial minority home buyers to purchase houses. His administration also warned about murky derivatives and the banks’ purchases of such investments. His proposal to curb these practices did not make it out of committee in the Senate due to loud wailing by Congressman Barney Frank (who, contrary to more recent posturing, was oblivious at the time to the dangers of over-leveraging) and officers of Fannie Mae and Freddie Mac (including well-paid Democrats). Then there was the filibuster threat from the Democrats (who controlled well more than 40 votes) against legislation to curb these practices that Frank and others described as “not broken.” Perhaps Bush should have used more political capital to push this matter along, but his eyes were on national security and the obstructions and attacks from the Democrats and the media on that front. Still, he does bear some responsibility for the failure to address these excesses more resolutely and successfully.

Greenspan’s role in artificially keeping interest rates too low, opening the spigots, cheapening the dollar, and driving investors to more and more speculative risk-taking (fueled by government participation through programs that reduced the risk of failure) is well-known. Plentiful dollars were looking for safety in commodities, starting with real estate, including investments in riskier and riskier loans. The bundling and securitization of these loans, together with the opacity of these bundles that might contain mixes of solid and risky loans in unknown ratios, contributed to the uncertainty about bank holdings that helped trigger and sustain the panic of 2007-2009. Eventually the limits of plausible real estate investments were passed and capital looked for other commodity havens, from gold to oil to rice. Commodity prices soared, with speculation in oil contracts fueling a huge spike in energy costs. That asset bubble, too, contributed both to the dollar inflation and the self-reinforcing cycle of commodity fever, and eventually helped cause the economic bust as many of those speculative positions had to be liquidated and the froth wrung out.

These economic trends are well beyond the power of any President to control and direct. To blame Bush or Obama is ridiculous. If any single institution were blameworthy, it would be the Congress, which, after all, is constitutionally and politically responsible for taxing and spending decisions. But even Congress by itself did not cause these conditions. Nor can Congress control them.

However, the President and the Congress can mitigate or exacerbate these conditions. For that, Mr. Obama and the current Congress bear much blame. Although I was inclined against the TARP law, I could see the argument for it. Obama likes to portray the cost of TARP as a Bush-caused deficit issue. But, first, the TARP was a loan program, much of which has been repaid during Obama’s administration. So, this should help his current deficit numbers. The problem is that Obama wants to spend these funds on other programs, so they contribute to the deficit once more. Second, Bush only signed off on the first half of the authorized TARP funds; Obama signed off on the second half. He did not have to do this. That decision is his responsibility and, to the extent that he argues the entire FY 2009 deficit should be assigned to Bush, this is deceptive.

Moreover, the “stimulus” that supposedly has saved and created so many jobs (but in fact has done so mainly for government jobs) was an Obama decision. As were the 2009 bail-outs of automakers. These aspects of the deficit clearly belong to Obama. Since the government no longer tries to figure out the impossible task of computing the number of jobs saved/created by the stimulus, but says that any jobs for which such money went automatically were saved/created, it is difficult to say what real impact the stimulus had on joblessness. The broader consensus outside the White House is that it has had little or no impact. As well, there is a negative effect of the stimulus on jobs. The need to borrow the funds for the stimulus crowds out private access to credit that might have saved those jobs. If the government is simply monetizing these costs, the bill will come due through inflation or taxes, the latter of which especially are job killers.

That brings me to the crux of the blame Obama must take. His radical programs reduce incentive for private capital to come in and take risks for job-creating expansion rather than sit on the sideline and invest in safety (gold prices have shot up) or by bidding up stocks to dubious price-earnings levels. His class-warfare tax rhetoric, the massive and radical collection of entitlement spending proposals (health care, student loans), the looming cap-and-tax regulations, the radical bureaucrats he has appointed (such the head of the off-the-rails EPA), the take-over of—and meddling in—car companies, the faux-populist attacks on banks and Wall Street, all spook investors and discourage risk-taking.

If I am a truly wealthy person, and I am threatened with higher taxes, I park my wealth in low- or no-tax investments (e.g., municipal bonds) or figure out tax avoidance devices. If I have to work because I own a business, I will squeeze my employees for at least some of the additional cost, by lowering their compensation/benefits, by firing some and having the others work more, or by moving more of my business out of the U.S. If the workers don’t like it, they can quit, and I will replace them with unemployed workers at the lower price. None of these things will increase jobs or, in the aggregate, help the economy. People are not passive, and history shows this to be the expected reaction. It happened in the late-1930s in response to FDR’s class warfare rhetoric and his tax and regulatory policies. Unemployment actually increased and did not come down significantly until the labor shortages created by WW II took care of it.

With lower economic activity induced by Mr. Obama’s rhetoric and proposals, and with the cost of these programs, no wonder that the deficits stretch out as far as projections are made. His spending proposals, unlike the temporary expenditures on the wars in Afghanistan and Iraq that Mr. Obama likes to blame, create structural deficits. They impose continuing and increasing costs. Worse, those expenditures, and his regulatory proposals, suppress economic growth, the very thing that might allow him to finance at least some of the anticipated growth in the cost of existing programs, such as Medicare. They do that by requiring government either to raise taxes, thereby reducing investment, if taxes are targeted at the rich, or depressing consumption, if taxes are targeted at the middle class. Alternatively, the government can borrow, thereby raising the cost of credit for private institutions competing with the government for loans and again reducing investment. Finally, the government can print money and create inflation, thereby creating great uncertainty about the value and stability of investments made now and also raising the cost of credit.

So, while Mr. Obama cannot be blamed for the recession and for all of the deficit, he (and the equally radical leadership in Congress) can be held accountable for the lingering joblessness and for increasing proportions of the deficits. Those are, even now, exacerbated by the economic fear and uncertainty created by his own radical agenda and his destructive and partisan class warfare rhetoric and tax proposals. It is ridiculous to blame his predecessor when his own projected deficits, in its best years, exceed his predecessor’s deficits in his worst year. With each passing month, his excuses become more laughable. Voters are getting that message better than, apparently, he is. His whining and attempts to deflect from his responsibility arising from his own proposals are backfiring.

Mr. Obama did inherit a recession; he did inherit a deficit, just as Mr. Bush inherited the collapsing NASDAQ and, to a lesser extent, Dow Jones, with the economic slow-down of 2001. Obama’s advisers and supporters are right in saying that the deficits and the recession would have been here no matter who was President. But they are wrong in not accepting that it is Mr. Obama who is prolonging and exacerbating the condition.

From Investor’s Business Daily comes Michael Ramirez’s impression of Mr. Obama:

Andrew Klavan, a former screenwriter of horror films, explains the effect of government on wealth and productivity. He proposes an analogy: Government is to wealth and productivity as zombies are to the living.

Christopher Hitchens describes the sociopathy and the existential threat to others that is the xenophobic militaristic crime fortress of North Korea.

While the people of North Korea try to survive the starvation produced by their criminal government and perverted socialist economic system, Australians are dealing with their own version of a problem, one indicative of the cultural condition of the West. Censors require that only women with substantial bosoms be depicted in porn, presumably to avoid simulated child pornography.

What? The Democrats as weak on defense and strong on collectivism? What a concept. Old stereotypes revived? More likely, leopards don’t change their spots, if one only cares to look.

I realize that federal hiring is booming. I also realize that the new administration has to replace lots of Bush administration officials with hires who reflect the composition of the Obama administration’s political coalition. Still, it is at least a bit odd that the Department of Justice’s Civil Rights Division would be making special efforts to hire these previously underrepresented groups: “The Civil Rights Division encourages qualified applicants with targeted disabilities to apply. Targeted disabilities are deafness, blindness, missing extremities, partial or complete paralysis, convulsive disorder, mental retardation, mental illness, severe distortion of limbs and/or spine.”

“Mental retardation?” “Mental illness?” That does explain many of the recent decisions of Attorney General Holder regarding national security issues. Why is the Civil Rights Division allowed to use the “r”-word, while Rahm Emanuel is not?

Following up some previous posts about whether it makes sense to get an undergraduate or one of various graduate degrees, there are some questions about the value of a law degree in light of educational expenses and lost opportunity costs. Many of the expenses are financed through loans that require a substantial debt service. The dean of Northwestern University School of Law calculates that amount to be $65,000. The average/median starting salary for attorneys is only $57,000, though that number varies depending on location, type of practice, and law school attended.

The Northwestern Dean, David Van Zandt, makes a compelling argument for changing the business model for law schools, something I wholeheartedly endorse. But he does not go far enough. Law schools must significantly reduce costs. There are some obvious ones that I have repeatedly mentioned, such as having professors teach more units and publish fewer articles on topics on the order of the latest critical theory implications of statutes of limitations or yet another whine fest about this or that identity group underrepresentation. The whole law school curriculum needs revamping, as I had the pleasure of discussing yesterday with a couple of my students and as I have posted before.  The problem is that schools will continue to embrace high cost programs and policies because many of those influence the U.S. News rankings. Even good faith attempts that I believe the dean at my law school would endorse have to consider the malevolent influence of magazine rankings on the attendance choices of students.

I do like the details of Northwestern’s two-year approach, which I consider in some ways at least superior to my school’s 2-year SCALE program. Some of the other components of the Northwestern program are also good ideas, such as the third-year practical focus and the enhanced admissions requirements. Again, though, I do not think they go far enough, especially in proposing specific solutions to developing more practical skills. In that regard, at least, I think that my school’s SCALE program is superior.

Another study, using more complex calculations, was done by a professor at Vanderbilt Law School. He concludes that, depending on a range of assumptions, a starting salary close to, or higher than, $100,000 is necessary for the average law student to realize a solid return on his or her investment. The variables considered in that study are so great, however, that one cannot calculate with precision the required starting salary. Moreover, as the professor appropriately points out, there may be intangible factors such as a passion for the law or the pride in the prestige of a professional degree that are not readily quantifiable that may make the law degree a good choice for a student even if a pure dollar-and-cents calculation might not.

The current law school model is not sustainable. The question is what will replace it. It has to be something that ties into what law schools can reasonably deliver without a cost that puts students into indentured servitude for decades.

I well remember the grief George W. Bush got if he mispronounced a word, such as “nuclear.” Slate magazine had a column about Bushisms that ran well after Bush left office. Although Obama has released more than a reasonable number of gaffes and verbal bombs, predictably he has not received the same degree of scorn from the enraptured press. Here is the latest: Obama and the “corpseman.”

First the crotchbomber, now this. The al Qaeda version of this. If one of them succeeds in blowing herself up, Homeland Security will respond by subjecting all women larger than 32A to special searches.

The United States as a conservative, center-right country, according to yet another poll.

The “certainty” of another terrorist attack on the U.S. within three to six months.

Thanks to L.A. County Superior Court Judge Lawrence Mira (my wife’s boss), my wife and I were able to attend a conference/gathering with Supreme Court Justice Anthony Kennedy at Pepperdine Law School. Justice Kennedy was in good form. I have met him before and had a chance to talk with him, when he visited my law school and I was asked by the then-Dean to introduce him to the students.

Kennedy is a very warm and personable man. He answered many questions in a thoughtful manner, but was also quick on his feet with quips and humorous stories. My favorite was his story of visiting some federal practice attorneys in Alabama. They asked him whether he actually read all the briefs. He replied that he enjoyed listening to opera, so he would read the briefs at home listening to opera. Depending on length and subject matter, some briefs were one-opera briefs, others were two-opera briefs, with the occasional three-opera brief. Kennedy related how those Alabama attorneys must have thought him to be some snooty elitist from D.C., talking about opera. But one of the attorneys responded that he had a similar system when writing briefs to the court. There was the one six-pack brief, the two six-pack brief….

Kennedy gave some insight into the Court’s process and his (guarded) opinions about other justices. He expounded on constitutional interpretation and the roles of advocates and judges. He also explained his philosophy of judging. That turned out to be no philosophy at all, as he cheerfully conceded. This is where I am troubled by Kennedy. His lack of a consistent philosophy shows in his opinions. He defends his approach by claiming that subscribing to a particular approach might cause the judge to pay more attention to complying with the philosophy than considering the case on its own merits. One can read this as a not-too-subtle dig at Justice Scalia and, perhaps, at Justice Thomas.

There are several problems with Kennedy’s approach. First, from a precedential standpoint, his approach fits well with his positioning himself as a “centrist” or “swing” vote. Justice O’Connor on the right and, less effectively due to the slight rightward tilt of the Court, Justice Souter on the left used to play those roles before they retired. Justice Kennedy’s counterpart on the Left today (and heir to Justice Souter) would be Justice Breyer. Such swing justices can have significant effect on the immediate cases. Their presence can certainly be useful to smooth out ideological and jurisprudential differences among the justices and to lend constitutional movement a more appropriately incremental, evolutionary cast. But their opinions often have little staying power, and their influence wanes quickly after they leave the Court. More jurisprudentially rigorous and principled justices, such as Scalia, are playing long ball. Many of their opinions, too, will lose force once they leave the Court, but some will become dominant doctrine in the future. These are the justices whose legacy is more likely to be remembered.

Second, institutionally speaking, the Supreme Court is different from trial courts or intermediate appellate courts. The Supreme Court is a “court of law, not a court of error.” Developing law requires attention to predictability and consistency. That is best accomplished within a jurisprudential framework that gives form to the decisions over time. For example, Justice Scalia’s “original meaning” framework gives a cohesiveness across cases that lends legitimacy to the result. As Justice Kennedy noted, the Court has to explain its decisions, which gain legitimacy through the reasoning. Having a rigorous analytical approach that constrains the subjectivity of judges’ decisions furthers that legitimacy. Moreover, it is unlikely that a specified jurisprudential framework will imprison the judge’s will. Judges are not known for being shy about making known their ideological views and impressing them on their decisions. At most, a jurisprudential framework will have the salutary effect of braking the natural tendency of the justices to decide cases according to their preferences.

Third, even if a justice shuns a jurisprudential framework, he or she is still likely to clothe an opinion with references to precedent. Precedent, too, is intended to constrain variability and promote consistency and predictability. Even judges such as Justice Kennedy pay formal homage to precedent and will even adhere to precedent, at least when it serves his purpose. No judge disclaims fealty to the doctrine of stare decisis. As an aside, even were a judge to do so, that, too, would be a jurisprudential approach, at least of sorts.

Justice Kennedy also defended the use of foreign law in Supreme Court opinions. He declared that such use was merely a recognition that the decision reached by the Court was supported by common attitudes in other countries. The use of foreign law operates as an affirmation of the Court’s decision, not as the basis of that decision. In support, he referred to the Declaration of Independence language about decent respect for the opinions of mankind requiring an explanation for what the Americans did there.

This rationalization is unconvincing. First off, the Declaration is not a legal document, but a manifesto that seeks political justification for a revolution and diplomatic and military alliances with foreign nations. Second, Justice Scalia has done a thorough job destroying the argument in favor of the use of foreign legal sources in his debate with Justice Breyer at American University a few years ago. There is no reason to seek “affirmation” from foreign courts for decisions involving the American Constitution. There is no democratic connection or a shared political culture with those foreign courts. Those courts come from a different legal culture and tradition, as well. Moreover, those courts were not around when the framers adopted the Constitution. If references to foreign law do not determine the outcome, as Justice Kennedy has assured, they are meaningless and should be omitted from official cases. As Justice Scalia has pointed out, justices are free to read foreign legal sources and comment on them outside the written opinions, such as at conferences.

One more point. Justice Kennedy averred that the reason he is not confining his search for constitutionally protected rights to those expressly protected in the language of the document is that, had the framers thought that they could foresee all the particular aspects of liberty, they would have written them down. But they protected “liberty” more broadly. Leaving aside the obvious point whether the protection of liberty in the due process clause(s) was intended to be more than a protection of a fair trial before incarceration, there are significant problems with Justice Kennedy’s conception of “substantive due process.” Obviously the framers did not intend the list of protections in the Bill of Rights to be an exhaustive recitation of all rights a person might have. The Ninth Amendment confirms that.

But the real issue is how, and by whom, the balance between the exercise of individual liberty and the community’s need for order was to be struck. That’s why an originalist such as Scalia (and, contrary to current academic fiction, there were many originalists before Scalia) would argue that, in the absence of express language of constitutional protection for some claimed right, that balance was to be struck by the political process, not by the courts. “Liberty,” after all, is a very expansive concept. Law is an ordering device that seeks, first and foremost, to control liberty. My liberty to kill my neighbor is controlled by law just as much as my liberty to engage in consensual sexual conduct or to make consensual contracts of employment.

The problem under the Kennedy approach is to decide how to separate constitutionally recognized liberty interests that are protected just as much as if they had been expressly enumerated from those that do not so qualify. That task has led to charges of result-orientation and ideologically-motivated judging. Justice Kennedy declared that each generation must be able to give constitutional content to its values. If that is so, however, and leaving aside Justice Kennedy’s own objection to popular influence over constitutional content in Planned Parenthood v. Casey, which branch best reflects those popular values, the unelected and isolated federal judges or the popularly-elected legislatures? Which process best reflects the requisite flexibility to allow each generation to shape the Constitution? Is it to constitutionalize issues so that any change is difficult to achieve except by constitutional amendment or the laborious process of overriding decisions? Or is it by leaving decisions not specifically taken from majoritarian control by the express words of the Constitution within the more flexible and responsive political process?

These questions demand much fuller discussion. Justice Kennedy raised these questions, and I believe that he failed to answer them adequately. That said, I wish that our school would make a concerted effort to bring Supreme Court justices to campus, a task at which Pepperdine and, to a degree, Chapman, have been quite successful. Instead, we will bring in yet another post-modern Leftist to demonstrate exclusively how various identity groups are oppressed by America’s endemic and subconscious racism, sexism, homophobia, and other evils that occupy the fevered imaginations of typical academics.