A poorly worded tweet became a career-altering conflagration for Ilya Shapiro in a particularly egregious example of cancel culture. It prompted him to take a hard look at the state of legal education, which he now skewers in Lawless: The Miseducation of America’s Elite. He and host James Patterson discuss the book, the atrocious impact critical theory and DEI has had on our law schools, and what the future might hold.

Related Links

Books by Ilya Shapiro:
Lawless: The Miseducation of America’s Elites
Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court

Transcript

James Patterson:

Welcome to the Law & Liberty Podcast. I’m your host, James Patterson. Law & Liberty is an online magazine featuring serious commentary on law, policy books, and culture, and formed by a commitment to a society of free and responsible people living under the rule of law. Law & Liberty and this podcast are published by Liberty Fund.

Hello and welcome to the Law & Liberty Podcast. Today, my guest is Ilya Shapiro, a senior fellow and director of Constitutional Studies at the Manhattan Institute. He was executive director and senior lecturer at the Georgetown Center for the Constitution, and before that, vice president of the Cato Institute and director of Cato’s Robert A. Levy Center for Constitutional Studies. Today, we’ll be talking to Mr. Shapiro about his forthcoming book, Lawless: The Miseducation of America’s Elites, which should be coming out very soon after this podcast, so be sure to look it up on Amazon-

Ilya Shapiro:

Actually, by the time this airs, I think it’ll already be out. January 14 is the pub date, so Lawless: Miseducation of America’s Elites. Go get it in any and all formats.

James Patterson:

That’s right. For those of you who need a little bit of schooling about self-promotion, Mr. Shapiro has provided you excellent example. Be on top of all this stuff. Anyway, welcome to the podcast.

Ilya Shapiro:

Good to be with you, and it was good to recently hang out with you and talk deep thoughts at a Liberty Fund retreat about the future of fusionism, and I’m happy to discuss the illiberal takeover of hire and especially legal education here.

James Patterson:

It was a great event. Fusionism, as always, a topic I love to talk about, and it was great to hear your thoughts about it as well, but that’s all kept hush-hush. What’s spoken at Jacksonville stays in Jacksonville. This is a book that’s not merely addressing a public policy problem, but it’s one that has a bit of a personal touch to it. Why don’t you tell the audience who’s not aware of your experience with cancel culture about what maybe was part of the motivation for this book?

Ilya Shapiro:

Yeah, Lawless uses my so-called lived experience as a jumping-off point for discussing problems with ideology, bureaucracy, failed leadership, all of these. The morass of pathologies in higher ed, and especially legal education. I focus on that not simply because I’m a lawyer but because, while it’s sad and unfortunate for human civilization, if English or sociology departments go off the rails, law schools train the next generation of the gatekeepers of our legal and political institutions, so that’s very important, if they start disbelieving in the objectivity of truth and the rule of law is illegitimate and all these. … We’ll get into that. Anyway, my personal experience, what launched this endeavor. I had been at the Cato Institute for nearly 15 years, and the opportunity presented itself to take my career in a new and exciting direction and join Georgetown Law School’s faculty to direct their Center for the Constitution, which is an important center, as we’ve learned, because the rest of the law school is the center against the constitution.

Randy Barnett hired me, he founded that center, a giant in the legal academic world, especially in the libertarian legal academic world. Hired me to run the center, to teach some classes, have an inward-facing focus as well as an outward-facing focus to proselytize about originalism, and so forth. A few days before I was due to take that job, I was due to start February 1st, 2022, was when Justice Breyer’s retirement news broke, and my day job, my bread and butter is as a follower and advocate before the Supreme Court. My previous book, Supreme Disorder, also still available both in hard and soft cover. It talks about the politics of judicial nomination fights and all the rest of that. I was doing media that day, I think it was January 27th, and I was on the road, happened to be on the road in Austin, Texas.

If I was at home, this probably wouldn’t have happened, the book wouldn’t have happened, because that night, when I got back to my hotel room, I was doom scrolling Twitter, not a best practice, and becoming more and more upset about President Biden hewing to his campaign pledge to appoint a Black woman to the Supreme Court. Now, there’s nothing wrong in the abstract with appointing a Black woman to the Supreme Court, but I thought and still think that the president should consider people of all backgrounds and not limit their candidates for any job, whether it be janitor or Supreme Court justice, based on race and sex. I was stewing it in that upset and fired off an ill-advised hot take on Twitter, as we all tend to do, I think, from time to time.

I said, “Look, if I was a progressive Democratic president, I think I would appoint the chief judge of the DC Circuit, the second most powerful court in the land. A man by the name of Sri Srinivasan, happens to be an Indian American immigrant as well, but under today’s hierarchy of intersectionality, that won’t fly, and so we will be left with a,” quote, “Lesser Black woman.” Meaning that, if it’s not Srinivasan, as I was positing, everybody else was less qualified, but in the limitations of Twitter, the character limits and so forth, it came out as “Lesser Black woman.” Then I went to bed and things blew up overnight. My ideological enemies called for my head, an investigation was launched. It was four days of hell for me, personally, I wouldn’t wish it on anyone other than the Twitter troll who launched all of this cancellation attempt against me, Slate‘s legal correspondent, Mark Joseph Stern. I felt my entire professional life crumbling before my eyes. Everything that I’d worked for decades, my parents’ sacrifices in taking me out of the Soviet Union.

It was terrible, it was God-awful. Then the Dean of Georgetown, Bill Treanor, after slandering me with his initial statements about how what I said was appalling and we can’t tolerate his saying that no Black woman can ever be qualified for the court, which is not what I said. Anyway, instead of either firing me or vindicating me, saying, “Well, that’s protected by our free speech policy, even if I don’t agree with what he’s saying,” or what have you, he took a middle course. He punted, as, as I’ve come to learn, higher ed officials, law school deans tend to do. Punted it to the DEI office and the human resources to investigate me for whether I violated Georgetown’s harassment and anti-discrimination policies, which was bizarre, because it was an investigation of a tweet, and you apply … these policies are very short and straightforward, so you sign that to some junior law professor to look at it for half an hour and come up with a conclusion.

No, it ended up being a four-month so-called investigation with Zooms with these HR and DEI people with just banal questions, and what have you, which I detail in the book. At the end of which, these four months of purgatory, if you will, that followed the four days of hell, some junior associate in the big expensive DC law firm that Georgetown hired to advise them, Wilmer Hale, looked at the calendar and realized I was not an employee of Georgetown when I tweeted, and therefore, these policies don’t even apply to me. They don’t have jurisdiction, as it were, and so I was reinstated on that technicality. It wasn’t a vindication of free speech or anything else. I celebrated that, but then I read the fine print, this 10-page report from the Office of Institutional Diversity, Equity, and Affirmative Action, which said that if I were to say something equivalent that caused offense, then I would be creating a hostile educational environment and I would be back in the star chamber.

Taking advice of counsel and Professor Barnett and my wife, who’s a better lawyer than all of us, I realized I simply could not continue. It was untenable, I would not be able to do the job I was hired for, whether in terms of writing op-eds or commenting in the media about, say, the challenge to Harvard’s affirmative action program that was ongoing in the Supreme Court at the time or other cases