The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
As a general matter, lawyers tend to be conservative. Not in the sense that they are right-of-center. Indeed, lawyers skew left. Rather, attorneys favor stability: support ideas they know, approved by people they trust, that are communicated through established channels. That preference for the status quo can be altered in one of two ways. The first approach is familiar: a slow, iterative process, in which marginally-revised ideas percolate by established elites, who then use traditional mediums to reflect the fact that the idea has gained mainstream support. After the idea reverberates around the echo chamber long enough, the idea is now part of the new normal. By contrast, the second approach bypasses all of those traditional trappings: a person with the requisite clout proposes a radical new concept, which shocks the elites into fierce oppositions, thus legitimating the idea, and bringing the idea into the mainstream. In politics, this process is known as shifting the Overton window. In law, we can call it shifting the Hoverton window.
Of course, I write about Judge James Ho. Two weeks ago, Judge Ho delivered a short speech at the Kentucky Chapters Conference of the Federalist Society. His proposal shocked the mainstream conscience: going forward, he would no longer hire graduates of Yale Law School. Ho's remarks, which have now been published by the Texas Review of Law & Politics, anticipated and addressed most of the criticisms he would ultimately receive. Indeed, it is apparent that Judge Ho recognized that he would be attacked for his views. But such withering criticism is a feature, not a bug to change the discourse.
In the abstract, if a person has an awful idea, the most effective strategy is to ignore the apostasy, and marginalize the speaker. (Several academics openly employ this strategy against me.) In time, the disruption will die down, and the status quo will resume. But disruptive ideas are hard to ignore. First, you have the social media hot takes. Blue check marks looooveeee to dunk on some crazy new idea that conflicts with their priors. Anyone with thumbs and a spool of thread emoji can become a self-proclaimed expert on anything. Second, you have the more sober responses that take the idea seriously, but ultimately reject it out of hand. These pieces invariably find some common ground, and in the process, strengthen the proposal. And third, you have the peers, who call their colleague out for heresy. Along the way, the mainstream press writes about the firestorm. Of course, they quote all the critics, but most journalists have some responsibility to seek out sources from other side. This balancing creates what Linda Greenhouse derided as a "false equivalency." And in time, the radical proposition makes its way into the realm of reasonableness.
Now, not every idea can traverse this labyrinth. In my mind, there are three prerequisites to shift the Hoverton window. First, the speaker must have sufficient intellectual gravitas. Specifically, he must be able to generate a novel idea, that departs sufficiently from conventional wisdom, but also anticipates and preempts the most likely response. He must also have a reputation which warrants his ideas being taken seriously. Second, the speaker must have secure tenure-in-office. To challenge the status quo, you need decisional independence. No one can override your position, or worse, tell you to stand down after an uproar emerges. (Tenured academics and Article III judges are among the few people who fit in this category.) Third, the speaker must have courage. You must be willing to publicly articulate your principle, knowing full well that you will be savagely attacked from all corners. (Very few academics and Article III judges fit in this category.) As a frequent target of social media firing squads, I can attest how unpleasant the feeling is. For good reason, I no longer look at Twitter or my mentions. I am nearly three years Twitter sober. I take some satisfaction knowing that my Twitter detractors are yelling into an empty void.
This background brings me back to Judge Ho's proposal. He announced it on September 29, 2022. Shortly thereafter, a dozen anonymous judges signed onto his program. Judge Lisa Branch (CA11) publicly agreed to join the boycott. Judge Edith Jones (CA5) voiced support for Ho's proposal. Judge Jerry Smith (CA5), who was Ho's boss in a bygone era, criticized Ho, and invited more Yalies to apply for clerkships. Judges McKee (CA3) and Wilkinson (CA4) lined up with Smith. Some judges privately supported Ho. Even more judges privately seethed at Ho.
But the message apparently got through to its intended audience, Dean Gerken. On October 12, Yale Law School issued a statement to alumni at Yale Law School concerning free speech. The timing of this statement seems related to Ho's proposal. Eugene wrote that "calls [for a boycott] might have helped prompt this message." Brian Leiter was more direct: "This seems a victory for Judge Ho." It is impossible to know what impact Ho's speech had on Yale Law School. But his willingness to be the first to speak, and change the conversation, likely nudged Gerken to speak out.
The Hoverton window has been shifted here. It was not the first time. (See pp. 374-376 of my article Judicial Courage.) And it will not be the last time.