The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
JD Vance on Justice Scalia in 2014
"He's become a very shrill old man. I used to really like him, and I used to believe all of his stuff about judicial minimalism was sincere. Now I see it as a political charade."
One of the rites of passage of becoming a prominent conservative politician is that your former friends disclose private correspondences to the mainstream media. And so it has come to pass for JD Vance. One of Vance's YLS classmates gave the New York Times more than 90 emails and text messages from 2014-17. Some of the passages reflect on the Supreme Court:
In 2014, they were both near the beginning of their careers, about a year out of law school.
Mr. Vance shared that he was planning to buy a house in Washington, D.C., with his wife, Usha, whom he also met at Yale.
The Vances could afford a house in Washington's highly priced market partly because Mr. Vance was starting a job in Big Law. "Blech," he wrote then, indicating his distaste for a career he had already decided against. He would remain with the white-shoe firm Sidley Austin for less than two years.
In the same exchange, Mr. Vance also wrote about his wife's interviews with justices of the Supreme Court, where she was seeking a clerkship. Mr. Vance worried that her seeming politically neutral, or lack of "ideological chops," could harm her chances.
"Scalia and Kagan moved very quickly," Mr. Vance wrote, referring to Antonin Scalia, the conservative justice who died in 2016, and Elena Kagan, one of the court's current three liberal justices, "but she was just not going to work out for Scalia."
Nelson wrote back, "His homophobic screeds are hard to believe in 2014."
"He's become a very shrill old man," Mr. Vance responded. "I used to really like him, and I used to believe all of his stuff about judicial minimalism was sincere. Now I see it as a political charade."
Mrs. Vance would end up clerking for Chief Justice John G. Roberts Jr.
Wow. There is a lot to unpack here.
First, it is well known that Vance has done a 180 on Trump. He used to speak of Trump in the harshest terms, but has now come to become one of Trump's most ardent defenders. I think it would have been expected for a Yale conservative* to be critical of Trump before 2016. But Vance's criticism of Justice Scalia was a different matter altogether. This email came in 2014, the year after Justice Scalia's Windsor dissent. This is almost certainly what Vance's friend referred to as "homophobic screeds."
Windsor was one of Scalia's last, great dissents. Here is the intro:
This case is about power in several respects. It is about the power of our people to govern themselves, and the power of this Court to pronounce the law. Today's opinion aggrandizes the latter, with the predictable consequence of diminishing the former. We have no power to decide this case. And even if we did, we have no power under the Constitution to invalidate this democratically adopted legislation. The Court's errors on both points spring forth from the same diseased root: an exalted conception of the role of this institution in America.
Justice Scalia was the scion of the conservative legal movement. At times he drove all of us nuts, but we would never say he was engaged in a "political charade." If you were to take a poll of Federalist Society members in 2014, how many would attack Scalia with such language? I suspect it is a vey small number. Indeed, I'm not even sure that Vance was ever a FedSoc member. I graduated law school only a few years before him. I first learned of him when Hillbilly Elegy burst onto the scene. I remember being surprised to learn he was a recent YLS grad, since I had never heard of him. I am far more troubled by Vance's criticism of Scalia than anything he ever said about Trump.
Second, Vance provides some unwitting insights into the clerkship game. He describes Usha Chilukuri, his future wife, as politically neutral, and lacking "ideological chops." At Yale, a Supreme Court clerkship is considered something of a birthright--the only question is which justice will hire them. That the same candidate was even considering applying to both Justice Kagan and Justice Scalia (of "homophobic screed" fame) suggests that she was willing to appeal to both sides of the spectrum. Scalia was known to hire counter-clerks, but Usha does not strike me as counter-clerk material.
Third, Vance provides some even more unwitting insights into the types of judges who ultimately hired a really smart law clerk who lacks "ideological chops": Amul Thapar on the Eastern District of Kentucky, Brett Kavanaugh on the D.C. Circuit, and Chief Justice Roberts on the Supreme Court. In 2014, these were judges who did not impose any sort of FedSoc litmus test on their hiring, and were known to hire clerks from both sides of the spectrum. And so they did with Usha.
***
It is always precarious to judge a person by things they did in their youth. People can grow from setbacks in their past. Indeed, I think much of the blowback of my post on Kamala Harris's bar failure missed the point. I noted at the end some other very prominent people failed the bar, and went onto great success. I've also written about Joe Biden's law school plagiarism, Elena Kagan's mediocre 1L grades, and the fact that Mitt Romney never even took the bar!
How then to explain these comments from Vance only a year after he graduated from the most elite institution. Was he just telling a liberal friend the standard liberal party line? Did he truly did not understand what Justice Scalia was doing--perhaps owing to his deficient legal education from a left-wing faculty? Did he never seek out any opportunities to learn about Scalia from FedSoc events, or otherwise? Or did he really believe what he wrote about Justice Scalia? If so, did he ever stop holding those views? And what kind of judges would Vance recommend for the courts? I'd like to hear some answers to these questions.
