S upreme Court silly season now produces an annual flood of ridiculous hit pieces not just on the conservative justices but also on the conservative legal movement. Few people in the movement have attracted more flak than Leonard Leo. Now, Shawn Musgrave of the Intercept has discovered a secret so dark and terrifying you may need to sit down to read it: Leo donates money to law schools to endow scholarship on the Constitution.
Musgrave warns that Leo has “targeted” law schools for “shadow philanthropy.” Philanthropy? Will he stop at nothing? I daresay very few law-school deans lie awake at night fearing that someone will target their schools with millions in philanthropy.
Musgrave’s story is breathlessly headlined “Leonard Leo Built the Conservative Court. Now He’s Funneling Dark Money Into Law Schools.” Yet, beyond the purple prose, it is a completely routine tale of a university donor attempting to support the expansion of study into an area he thinks could use more scholarship. The story actually reads like an exposé of the anti-intellectualism and detachment from reality that ails American legal education today. There are villains here, but they’re not Leonard Leo or legal conservatives; they’re his opponents.
A Constitution, If You Can Study It
Leo, an alumnus of Cornell’s college and law school, proposed a donation of up to $25 million to fund a “Charles Evans Hughes Center for the Study of the Structural Constitution” at Cornell Law School. The concept involved a center and a professorship focused on the separation of powers, federalism, and other structural features of the Constitution. Hughes would have been an apt namesake: a former Cornell Law professor who went on to be governor of New York, secretary of state, chief justice, and a candidate for president. Chief Justice Hughes led the Supreme Court during the tumultuous debates over the New Deal and Court-packing, including authoring the landmark nondelegation-doctrine opinion in A. L. A. Schechter Poultry Corporation v. United States (1935).
The only really remarkable part of this story is that Leo’s effort appears to have been thwarted by a rebellion of left-wing faculty alarmed at losing their stranglehold over what gets taught at Cornell. According to Musgrave, who says his story was based on interviews with professors who wished to remain anonymous (he quotes only one Cornell professor on the record), “Cornell professors worried a center sponsored by Leo . . . would establish a beachhead for far-right scholarship.” That, by itself, speaks volumes. Legal scholarship has no power of its own; it is only as good as its persuasive impact in the marketplace of ideas within the legal profession and the judiciary. It is revealing to hear people purportedly in the teaching business speak of ideas as if the faculty is manning the Atlantic Wall, trying to drive conflicting ideas back into the sea as they pour out of their landing craft before anyone can hear them.
This passage should dispel the illusions of anyone who thinks that elite law schools these days are places of free and fair debate:
To many Cornell Law professors, . . . a Leo-sponsored center devoted to the “structural Constitution” registered as a potential launchpad for right-wing legal theories at an elite, generally liberal institution. They saw it as an attempt to buy credibility for Leo’s broader, arch-conservative views, many of which have extraordinarily low support among legal scholars nationwide.
To say that an Ivy League school should not allow scholarship to “buy credibility” reveals the appeal-to-authority mindset of these faculty. There’s a famous and possibly apocryphal story that after the publication of a 1931 book called “A Hundred Authors against Einstein” that collected criticisms of his theory of relativity, Albert Einstein quipped, “If I were wrong, then one would have been enough!” There are, of course, many legal theories about our constitutional structure, and the best way to distinguish the serious ones from the crackpottery is through scholarly debate, not by behind-the-scenes machinations aimed at preventing ideas from getting a hearing.
Moreover, as illustrated by the actual proposal (discussed below), what was envisioned was a professorship for someone who is already a prominent tenured academic and a center that would attract visiting scholars of established renown.
Musgrave concedes that “a ‘structuralist’ analysis of the Constitution can mean many things, including basic principles like separation of powers and federalism.” What he links to in order to demonstrate structuralism’s “extraordinarily low support among legal scholars nationwide” is a 2023 Georgetown Law Review survey of some 600 legal academics, as if this were proof that Leo and other legal conservatives are wrong to focus on these foundational principles of our constitutional design that used to be basic to the civics classes of schoolchildren and that have been a persistent feature of the Supreme Court’s jurisprudence for 235 years. As Ilya Somin summarized, the Georgetown survey mostly revealed the extremely unrepresentative political tilt of law-school faculties:
Martinez and Tobia’s findings on the views of law professors are potentially significant. When it comes to their general political orientation, lawprofs are overwhelmingly on the left. MT’s survey results shows that 81% of their sample of lawprofs at top 20 schools (as ranked by US News) identify as “liberal” compared to 12% who are “middle of the road” and 7% “conservative.” Indeed, “conservatives” of all stripes are heavily outnumbered just by the 22% who identify as “very liberal.” The sample of professors at top 50 schools not in the top 20, is only slightly less liberal (72% liberal, 14% middle of the road, 12% conservative). . . .
Closely related to the finding on ideology is the result that only 17% of lawprofs in the study “accept” or “lean towards” originalism as a method of constitutional interpretation, while 76% “reject” or “lean against” it. By contrast, 70% support “living constitutionalism” and 61% support “common law constitutionalism.”
(If those percentages sound familiar, it’s because they mirror the ideological breakdown of the political-science professors who respond to surveys ranking the presidents.)
In other words, it’s not that Musgrave is arguing that a center for structural-constitutional scholarship would produce bad originalism or even that it would produce scholarship out of step with contemporary jurisprudence but rather that the legal academy itself is currently overstocked with people who reject the entire premise that the law should care what the Constitution was understood to mean when it was ratified. They don’t even want the question asked on their campuses.
You can believe what you like about the question of original constitutional meaning, but to shut down discussion of it places legal scholars outside the mainstream of the governing theory of the federal judiciary. If law schools won’t even teach or study the ideas and methods that decide cases in court today, they aren’t just waging war on ideas; they’re also ill-preparing their students to argue cases in American courts.
Double Standards
Donors giving money to colleges and law schools is hardly a novel story. Some of them want their names blared out and imposed on buildings, but others prefer to remain quiet or anonymous. Nor is it uncommon for very large donors to want to earmark their donations to support or establish a particular course of study. The web pages of law schools often even contain instructions and sometimes price sheets for donors seeking to bankroll particular activities and buildings.
One need only browse any faculty to see a list of chairs endowed in the names of donors (or people whom anonymous donors wanted to honor). The same goes for particular facilities and centers of study. Some colleges today have elaborate stock-trading facilities sponsored by businesses, or donor-funded clinical nursing centers. And that extends as well to more politically and socially activist forms of instruction.
When I was at Harvard Law School in the mid 1990s, the law school opened a “Center for Islamic Studies” with funding seeded by a $5 million grant from King Fahd of Saudi Arabia as well as a permanent endowment funded by Pakistani prime minister Benazir Bhutto (a HLS alumna) and the Pakistani government. Consider just a sampling of more recent donations:
At the Center
To the extent there’s any basis at all for law professors to push back at this sort of thing, it’s out of fear that the academic independence of the law school might be compromised by giving too much control to a large donor. That’s a matter of some tension in any donation of this scale that comes with some earmarking towards a particular purpose — but as we can see, such earmarking is commonplace and attracts no great controversy when it’s not a conservative seeking to fund a topic that left-wing professors would rather not see taught or studied.
Per Musgrave:
When [Cornell Law dean Jens David Ohlin] presented the idea of the center to the faculty, they pushed back on “what appeared to be fairly strong constraints about what the center would study,” said George Hay, a longtime Cornell Law professor. Faculty worried the center would be “politically tilted toward supporting a certain view of how the legal system should run, which fit in nicely with Federalist Society principles,” Hay said. “It seemed like the agenda was preset and the faculty didn’t want it with those strings,” Hay said.
Hay, a professor of antitrust economics who got his Ph.D. in 1969, may be prominent in his field, but he’s not exactly a leading scholar on constitutional law given that his CV doesn’t even include a law degree. Then again, at least he was willing to speak on the record, unlike his colleagues. More to the point, note that the only concern raised here is “the agenda” of “what the center would study” — in other words, its topic, not the freedom of its scholars to fearlessly pursue the truth about that topic. The point of this sort of pushback is not to prevent a donor from controlling what gets taught at the law school but to preserve the hegemony of the faculty over what does not get taught.
Also, the expressions of concern that the faculty could be “politically tilted” is extremely rich when you consider the political tilt of the current faculty at most law schools. You don’t need to buy influence when your people already hold the power.
Musgrave cites a proposal for the center that was prepared by Cornell in 2021. National Review has obtained a lightly redacted copy of that proposal. It lays out the general direction envisioned for the center:
The Center will promote teaching, scholarship, and debate based on close reading of the Constitution — reading informed by knowledge of the historical context of the Constitution’s original framing and ratification — with a particular focus on the structural features of the Madisonian system, characterized by its separation of powers among the Legislative, Executive, and Judicial branches.
Hardly radical stuff or a detailed agenda. The stated “goals” of the center, as proposed, include “advancing scholarship focused on the study of the structural elements of the U.S. Constitution, with an emphasis on excavating the original understanding of those pieces” but also “offering courses, seminars, and symposia about constitutional law and interpretive approaches to the U.S. Constitution that engage the full spectrum of philosophical premises and ideological approaches to that enterprise.”
For possible hires for the endowed chair, the proposal notes, “Among the thinkers we would consider for the role are Ilya Somin, Michael Rappaport, Gary Lawson and Michael Ramsey. It’s clear that the field of worthy candidates, though necessarily limited, contains some exciting possibilities.” Nothing in the proposal suggests that anyone outside the law school would have any power over faculty appointments or any other aspect of the program; all that is anticipated is “annual reporting to its donor-stakeholders about the Center’s activities,” which is standard fare in this field. Leo responded, in a statement to National Review: “I never asked Cornell for control over who they would hire or what scholarship the center would produce, and Cornell never offered it.”
As Musgrave’s account relates, Cornell buckled and tried to salvage half a loaf by offering to take Leo’s money to endow a professorship with nothing more than a vague future hope to establish a center — the subtext being that one might be established if and when the faculty pressure relented. But once the faculty was feeling sufficiently empowered to steer the project away from the Constitution, it was only a matter of time before they made more demands. Leo, seeing the writing on the wall, took the project to the Texas A&M law school, and Cornell and its students missed out on a golden opportunity.
Musgrave remains alarmed that other law schools did not show solidarity with Cornell and maintain a united ideological front against teaching and studying the structural Constitution. But even today, not every law school wants to remain a hermit kingdom isolated from modern legal thought. The Cornell faculty campaign that Musgrave describes should be understood for what it is: an effort to cancel the U.S. Constitution itself from being taught and studied. After all, if people start learning what the Constitution means, they might start thinking for themselves and believing in other American things, too. We can’t have that, can we?