Georgetown Professor Denounces “Lawless” and “Actively Rogue” Justices, Lawyers, and Law Professors

In a series of tweets this week, Professor Heidi Li Feldman has denounced “lawless” and “actively rogue” Supreme Court justices and professors who disagree with her views on the Constitution. She has called for “genuine” law professors not to fall “into complicity with lawlessness” in teaching such subjects. It is the latest voice of intolerance and orthodoxy at a leading law school.
      In the age of rage, calls for radical action from both professors and students have been particularly amplified at Georgetown University. We recently discussed Georgetown Law Professor Josh Chafetz, who went to Twitter to defend “aggressive” protests at the homes of Supreme Court justices, explaining that such mob action should be permissible when “the mob is right.” Then Georgetown University Law School Professor Rosa Brooks appeared on MSNBC’s “The ReidOut” after declaring that Americans are “slaves” to the U.S. Constitution and that the Constitution itself is now the problem for the country. At the same time, the law school showed little support for (and effectively forced out) a conservative colleague, Professor Ilya Shapiro, due to a controversial tweet.
      Denouncing opposing views as “lawless” is merely a way of declaring that your view of the law as the only acceptable view. The support for the Constitution or its core institutions cannot be premised on others yielding to your demands or your values.
      There was a time when such a demand would have been viewed as inimical to academic freedom and free speech on faculties. Today, this intolerance for opposing views is celebrated and echoed at many universities. Indeed, last week my study on the decline of free speech was published with other example of this rising orthodoxy among faculty members (“Harm and Hegemony: The Decline of Free Speech in the United States”).
      It is not enough for Professor Feldman to passionately disagree with the constitutional interpretation of the Court or other faculty. She believes that justices, lawyers, and fellow academics must be denounced as “lawless” and actively opposed to avoid “complicity with lawlessness.” Indeed, she suggests that it is “unethical” not to support or teach such alternative views:
Law practice, law teaching, and legal scholarship always run the risk of being in service to the unattractive, unethical sides of law: its use for the sake of power rather than for justice, its co-optation by the wealthy, its abuse by unscrupulous government officials.”
She further challenges those who work for institutions like the Supreme Court: “First, lawyers, legal scholars, and law schools have to point out that meekly serving lawless institutions is not actually serving law.” 
      What was equally concerning is this statement:
“Genuine lawyers, legal scholars, and law schools will make central – to their practice, their writing, their teaching – the project of protest against and change to institutions and actors who disingenuously hold themselves out as acting in accord with and on behalf of law.”

So, according to Professor Feldman, a law professor is not a “genuine” academic unless he or she uses their writing and teaching to “protest against and change to institutions and actors who disingenuously hold themselves out as acting in accord with and on behalf of law.” That not just calls for classes and courses to be used for advocacy and activism but suggests that faculty members or faculty candidates who do not make a similar commitment are “lawless” and “rogue.” 

      Professor Feldman’s public diatribe shows why conservative and libertarian faculty have virtually disappeared from many faculties. Most top law schools only have a small percentage, if any, such faculty members. Faculty members often find a myriad of reasons to reject such candidates, including dismissing them as not being intellectually “rigorous.” At least Professor Feldman is more honest and would just declare them lawless and unacceptable because they do not share her views.

Feldman and her colleagues show why polls reflect a rising level of intimidation and self-censorship by both faculty and students on campuses. A recent poll found that 65 percent of students feel that they cannot speak freely on campuses. Another poll at the University of North Carolina found that conservative students are 300 times more likely to self-censor themselves due to the intolerance of opposing views on our campuses.

In order to avoid disfavored treatment, many remain silent in the face of such open intolerance and intimidation. Schools reinforce this chilling effort in various ways, including creating a hostile workplace for those with dissenting views.

This extends to student editors and student government leaders using their positions to retaliate against the exercise of free speech by other students with the support of faculty. We have seen student governments move to block speakers, fellow students, or groups at schools like the University of Illinois, Stanford, Iowa State, Skidmore College, Cornell, Harvard, and other schools. Student columnists have been formally condemned at schools like Georgetown and both faculty and students have sought to eliminate whole publications at schools like Dartmouth as “incubators of hate.”

I support faculty participating in protests and advocacy. I also subscribe to a robust view of academic freedom in protecting even extreme views of faculty members. However, Professor Feldman is seeking to pressure colleagues to use their classes and courses for this purpose. Indeed, she is declaring that faculty must seek to change institutions and “actors” if they are to be considered “genuine” academics. Notably, there has yet to be any widespread condemnation of her intolerant views at Georgetown. Professor Feldman is attacking the very essence of higher education as a place for pluralistic and diverse viewpoints. Yet, there is comparative silence from the ranks of her colleagues. That silence speaks even more loudly than Professor Feldman’s screed.

Here are Professor Feldman’s tweets:

Heidi Li Feldman
@HeidiLiFeldman
With an actively rogue Supreme Court, U.S. lawyers, legal scholars, and law schools have to reckon with how to practice, teach, and understand law without falling into complicity with lawlessness. 1/

Heidi Li Feldman
@HeidiLiFeldman
Replying to @HeidiLiFeldman
Law practice, law teaching, and legal scholarship always run the risk of being in service to the unattractive, unethical sides of law: its use for the sake of power rather than for justice, its co-optation by the wealthy, its abuse by unscrupulous government officials. 2/

Heidi Li Feldman
@HeidiLiFeldman
But in more ordinary times, ordinary legal practice and legal education can grapple with these issues. When one branch of the federal legal system goes lawless, the problem is of a different order. 3/

Heidi Li Feldman
@HeidiLiFeldman
In more ordinary times, we can study and teach U.S. law against a background that presidents, governors, state and federal legislators, and judges on all courts have a basic commitment and aspiration to rule of law and to justice. 4/

Heidi Li Feldman
@HeidiLiFeldman
Ordinarily, there is strength and purpose in teaching, thinking about, and, in legal practice, arguing the failures of judges, legislators, and executives to fulfill requirements of rule of law and justice. We expect an understanding of the failures to have *traction*. 5/

Heidi Li Feldman
@HeidiLiFeldman
With the rise of the Trump-Republican Party, this traction – the ability to argue within a shared expectation of commitment to rule of law and justice – has completely evaporated. Last term’s Supreme Court decisions are just the most recent high-profile evidence for this. 6/

Heidi Li Feldman
@HeidiLiFeldman
During and since Trump’s time in office we saw how, time and again, he and members of his administration completely disregarded basic tenets of rule of law, eg basic due process. We saw his judicial nominees lie under oath in Congressional hearings. 7/

Heidi Li Feldman
@HeidiLiFeldman
Throughout the country we have seen Republican legislators, officials, and judges gut the basic levers of pluralistic democracy by trimming both rights and opportunities to vote and vote meaningfully. 8/

Heidi Li Feldman
@HeidiLiFeldman
Regardless of our areas of legal speciality any ethical study, teaching, or practice of law in the U.S. must now start from the problem of developing and implementing law when so many of legal institutions are in the grips of lawless actors. 9/

Heidi Li Feldman
@HeidiLiFeldman
First, lawyers, legal scholars, and law schools have to point out that meekly serving lawless institutions is not actually serving law. 10/

Heidi Li Feldman
@HeidiLiFeldman
Genuine lawyers, legal scholars, and law schools will make central – to their practice, their writing, their teaching – the project of protest against and change to institutions and actors who disingenuously hold themselves out as acting in accord with and on behalf of law. 11/

Heidi Li Feldman
@HeidiLiFeldman
We have to show and teach that the forms and tropes of law can be used quite skillfully to mask deeply lawless judicial opinions and statutes. We have to show how commitments to individual dignity and pluralist democracy are what make law ethically and politically valuable. 12/

Heidi Li Feldman
@HeidiLiFeldman
Responding to lawless legal institutions and legal actors from within the practice and study of law means being honest about the battle lines and who is on which side. 13/

Heidi Li Feldman
@HeidiLiFeldman
We must remember, teach, and study the practice and thought of other lawyers who deployed law against pseudo-law: the colonial and English lawyers who argued for the America Revolution; Thurgood Marshall and Constance Baker Motley; Ruth Bader Ginsburg; also Gandhi, Fraenkel. 14/

241 thoughts on “Georgetown Professor Denounces “Lawless” and “Actively Rogue” Justices, Lawyers, and Law Professors”

  1. not an argument.

    “I always cheer up immensely if an attack is particularly wounding because I think, well, if they attack one personally, it means they have not a single argument left.”
    Margaret Thatcher

  2. It is.

    It is not wise to make assumptions about others.
    Probably why the expression is common.

  3. “a rather common expression”

    ATS, you are a less than common individual. Once again you are dissing the entire blog using an email address that you know will be removed from the site.

  4. My inference (as a lawyer who has practiced law for well over 40 years) from Professor Turley’s remarks concerning faculty at Georgetown Law School is that Georgetown no longer deserves the high regard as to its competency and value that it once enjoyed.

  5. If you have a talented child you should think first about wether you should send your child to Harvard to be indoctrinated by this law professor. A better alternative might be Che Guevara University in Havana Cuba where they teach that if your not teaching revolution all the time your not keeping your commitment to the Fatherland. Instead of paying big bucks to Harvard you can get your education for free from the Che Guevara University. Soon you will understand the glory of the Great and mighty Che.

  6. George, where is the constitutional provision that provides a right and a process for a state to secede?

  7. This insane communist and the vast legions of her left-wing allies, including the innumerable divisions of reinforcements streaming across the border, must abrogate the United States of America and its Constitution.

    This should have been done in 1865 when Karl Marx conquered its president and America.

    These are the direct and mortal enemies of the Constitution, America and Americans.

    The adversaries of America must implement the principles of communism they espouse by another title and name.

    The Union of the American Socialist Republics – the UASR.

    Now that’s got a nice ring to it.
    ________________________

    “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

    – Declaration of Independence, 1776

  8. How does one argue with hysteria and incoherence?

    The Supreme Court corrected a flagrant, 50-year error, an egregious nullification of the Constitution.

    Abortion is not an enumerated constitutional right.

    Abortion must be legislated.

    An exponentially more deleterious, 150-year-long error is the denial of fully constitutional secession, an act the men who wrote the Constitution engaged in themselves against the British Empire.

    Secession by southern states was constitutional, understanding that slavery must have been ended by legal means and methods other than constitutional nullification and war.

    This “professorette” believes an adverse effect was engendered by the ineluctable and proper decision to require legislation regarding abortion.

    The professorette must cite the Constitution for a prohibition of secession, understanding that she cannot, and that omission provides approval.

    The continuing adverse effects of the epoch of the denial of secession are exponentially subversive and destructive of the American thesis and Constitution.

    1. Not sure why you are hung up on secession. The Constitution did not become effective until ratified by nine states, and only became effective on a particular state when that state ratified it under Article VII. So, once the Constitution is ratified, the state is bound by its terms, and limited by its checks and balances, including the supremacy clause, etc. Once part of the Union, a state cannot vote by itself to get out. That was decided in Texas v. White. A state could presumably exit the Union via the amendment process, but a sufficient number of the other states would have to agree to pass the amendment letting the state out. As a free people we all retain the right to sever the bonds to our government and start a new government, but that means revolution and you have to be prepared to fight to maintain that separation. So, amendment process or fight. Those are your choices. Choose wisely…

      1. Thank you so much.

        You didn’t cite the Constitution because you can’t.

        You are, however, eminently capable of forming a personal opinion, unfortunately, your opinion does not reveal or establish law or fundamental law.

        I must admit, in this current environment of SCOTUS 2022 abrogating, overturning and completely reversing SCOTUS 1973, your reference to a Texas SCOT “decision” was quite simply brilliant.

        Congratulations.

        Evidently, I misunderstand that the Constitution holds dominion in America, not some yokel from “Deliverance.”

        It is also so very unfortunate that you weren’t around when the American Founders engaged in secession against the British Empire – you might have obtained a fee as a juridical advisor.

        You did hear about that, right?

      2. Secession is not my concern; my concern is everything “Crazy Abe” Lincoln did to the Constitution, to America and and to Americans subsequent to his illegal denial of secession, which unconstitutionally persists to this day.

        Without his unconstitutional denial of fully constitutional secession, Lincoln’s “Reign of Terror” never happens and the entirety of free America continues to this day.

        Slavery must have been concluded using legal and constitutional means and methods.

        1. Imagine a free America under the unfettered dominion of the “manifest tenor” of the Constitution, bereft of matriculation affirmative action, grade-inflation affirmative action, employment affirmative action, quotas, welfare, food stamps, minimum wage, rent control, social services, forced busing, public housing, utility subsidies, WIC, SNAP, TANF, HAMP, HARP, TARP, HHS, HUD, Agriculture, Commerce, Education, Labor, Energy, Obamacare, Social Security, Social Security Disability, Social Security Supplemental Income, Medicare, Medicaid, “Fair Housing” laws, “Non-Discrimination” laws, etc.

          Article 1, Section 8, provides Congress the power to tax ONLY for “…general Welfare…,” omitting and, thereby, excluding any power to tax for individual welfare, specific welfare, particular welfare, favor or charity. The same article provides Congress the power to regulate ONLY money, the “flow” of commerce, and land and naval Forces. Additionally, the 5th Amendment right to private property is not qualified by the Constitution and is, therefore, absolute, allowing Congress no power to claim or exercise dominion over private property, the sole exception being the power to “take” private property for public use.

          Government exists, under the Constitution and Bill of Rights, to provide maximal freedom to individuals while it is severely limited and restricted to merely facilitating that maximal freedom of individuals through the provision of security and infrastructure only.

          Did you ever read the Constitution?

          How ’bout them Founders and the America they established?

          “Gone With The Wind”

      1. Very well articulated.

        Oh, my, yes.

        In fact, you are ignoring my comments as you write about them.

        Unfortunately, your quiver is empty.

        Thanks for reading, again and again and again and again…

  9. Turley is a good guy and a firm believer in the benefits of free speech, which is a very good guiding principal. He goes into each of these culture-war firefights as the voice of reason, telling each side to play by the rules. But one side has decided to completely disregard the rule book. To them, the rule book is racist and sexist and just an illegitimate means to maintain the hegemony of the white patriarchy. Your words become hate speech that must be suppressed, or worse, violence that should be prosecuted. We have one side that wants an open and honest debate, and the other side that wants you run from civil society if you voice a dissenting opinion, or rather just fail to support the “current thing” vociferously enough. Their disregard of the rule book has been lavishly rewarded — their opinions stand practically unchallenged in the academy and their fellow travelers control education, the federal bureaucracy, the department of justice, all the big corporate boards, all the big law firms, and now even the military. They have profited considerably from their violations of the polite “Marquess of Queensberry Rules,” and I don’t think they can be persuaded to abandon such a successful strategy. Turley is right, but he is sort of like a guy in a hurricane trying to tell the wind to not blow so hard. At some point he should start to examine how we can change the current unacceptable situation. How can we make it profitable to play by the free speech rules, and unprofitable to demonstrate the intolerance of a Heidi Li Feldman? It might involve a tit for tat, or eye for eye, but I doubt Turley would go for that. Until then he is just howling at the wind.

    1. tommylotto: Yours is a very good and thought-provoking comment–the kind I like to see at this site. Thank you.

  10. Wannabe dictator children are taking over the teaching profession. “It’s mine”, they say, as they use the law to satisfy their childish dreams and indoctrinate others. They do not function in the adult world. When forced to be adults, they will fail or suddenly remake who they are.

    There are also wannabe adults who believe their righteousness trump the ideas many people hold. They mindlessly criticize people that react against the left because they don’t maintain those “high standards”.

    Thus Tea Party people are looked down on, as are Trump’s tweets. Admittedly some of the silly stuff lacks the slickness of a Harvard graduate, but they still offer a lot of common sense. Maybe some of those that presume themselves to be adults should demonstrate more respect for hard-working people without Harvard degrees. When one refuses to do so, they fractionate the strength of the forces fighting the totalitarian left.

    I think the wannabes on both sides should start to recognize common sense more and stop worrying about some of the silliness they see and worry about their own. Such actions on both sides contribute to the destruction of the nation.

    1. “In every disaster throughout American history, there always seems to be a man from Harvard in the middle of it.” -Thomas Sowell

  11. I’m curious about the relationship between universities that identify as Catholic and their relationship to the Church, and to the particular order that they identify with, for example Jesuit. The Catholic Church is not at all “woke”, so it surprises me that some Catholic universities and law schools are so extremely liberal and espouse views that do not at all represent the views of the church. Does the CC have any control over these institutions? If not, what’s the point of them being identified as Catholic if what they are teaching does not represent the values of the Church? Notre Dame and Catholic Univ. law schools are not considered “woke”, but Georgetown and the Univ. of San Francisco, both Jesuit law schools, are decidedly so, and the law deans and professors are mostly Jewish and very left-wing. So I’m curious, if anyone knows, whether the CC and/or the Jesuit order have the power to reign-in these lefty law schools and are choosing to not exercise it, or if the law schools are simply wholly independent money-making machines for the church and/or the religious order that they are affiliated with.

  12. The left spends a lot of time using the, Appeal to Authority Fallacy.

    This law prof claims to be an authority, free from examination. It would help her credibility to cite the law, in support of her opinion. She never gets around to those details.
    In Dobbs, SCOTUS ruled that the States cannot be overruled by the Federal Government. The People, acting through their State elected representatives will write the laws the People want.

    Good faith disagreement is welcomed. Our Nation provides pathways for the people to constantly adjust the code of conduct for the Nation. Harassing judges, and seeking ‘work a rounds’ to the constitution is not on the list. All the energy expended by the left, should be focused on enacting the legislation they desire.

    I have been told since Roe, SCOTUS rulings= Constitution. Now I learn, the left meant, ‘only if they like the ruling’. Everyday provides another example of the left, devoid of any principles to guide their thinking. ONLY amassing power, seems to be the driving force.

  13. These rage addled “scholars” fail to realize that the system is all that keeps them from being dragged into the streets by the mob yet they work tirelessly to destroy it.
    They would do well to remember the fate of the rabble rousers like Robespierre.

    1. This would imply that the professor has read history. I know our education system has failed many. It is just mind-blowing that a professor at such a “prestigious” university would be so shallow and uninformed. Or maybe, as I truly believe, these people are true believers (not of capitalism or the Constitution). This will not end well. Militant behavior begets a militant response.

  14. If you’re a prospective employer you would have to be out of your gourd to consider hiring a graduate from this institution. Considering their teaching staff there’s plenty of opportunity for them in Iran and Venezuela.

    1. Well said! I also think expressed contempt for the Constitution should disqualify that lawyer from holding any federal appointment or office as s/he can not take the required oath.

    2. And finally, someone who gets it. The prospective employer still has the right and privilege to hire, and not hire, a person whose ‘values’ are antithetical to the smooth and efficient operation of a business with a ‘profit motive.’ Let’s not forget that the Internal Revenue Code says a business must have a profit motive in order to enjoy the tax deductions, including the cost of employee payroll and costs of running the business. Without the profit motive, the IRS labels you a ‘garage operation,’ or a ‘hobby’ rather than a business. This ‘professor’ which Turley is talking about is being paid to profess her opinions, which in our leftist-oriented tilt in 2022 she believes are widely supported mandates —‘you WILL agree with me or else you are WRONG!’ Personally, I can’t stand people who are that arrogant — and as far as I’m concerned, this professor Heidi is ‘unAmerican.’ 70 years ago she’d be tried and found guilty…..

  15. If this lady was in private practice and filed a complaint on behalf of her client, would she have a melt down if the other side filed an answer and disagreed with her claims. Obviously, she cannot tolerate dissent. She should find something else to do.

    1. Great point! Only professors can act this way. At least from my experience, she would be eaten up in any litigation. “Your honor, I am offended by opposing counsel’s argument.” Bahahahaha. What a child. These people live in ivory towers. That is why you also can’t have any of them making financial polices or decisions. They have no experience the real world.

  16. “ Today, this intolerance for opposing views is celebrated and echoed at many universities.”

    Who says opposing views must be tolerated? Turley is suggesting opposing views must be tolerated? Need I remind Turley that intolerance of opposing views by expressing condemnation, objection and even calling for those with an opposing view to be cancelled IS free speech.

    It’s interesting that the whole idea of “cancel culture” began with the religious right. When they didn’t like some company or organization that supported homosexual lifestyles, same-sex marriages, or even the “gay agenda” there were always calls to boycott their products, programs, stop donations, etc.

    Now ironically they cry foul whenever someone or something is being “cancelled” and mock it. They introduced it to society. Ah, those crazy religious conservatives. They sure love to dish it out, but can’t handle it when they’re on the receiving end. Typical.

    1. No, it actually started with the gay community in the 70s and “outing” prominent gays who were in the closet, then it moved on to boycott Florida orange juice because of a spokeswoman (I don’t recall her name) who had made anti-gay remarks. From there, others of different political views began with boycotts which I doubt are successful. It’s one thing for someone lying on his couch to tweet that he’s never buying X again, but how long does that last? I can say I’ll boycott Chick-fil-A, but then sneak through the drive-thru lane under cover of darkness, hahaha.

      1. Can’t disagree with that, however even if boycotting was unsuccessful most of the time. The IDEA survived and it is now what we see as “cancel culture”.

        1. Svelaz: Yes, it was the advances in technology that led to “cancelling” and “doxxing.” It’s very unfortunate that what is, at its core, the shunning and vindictive behavior of emotional gay men and 14 year-old-girls has become mainstream. It doesn’t say much for our culture, sadly.

      2. Boycotts long pre-date the FL orange juice boycott (and the person you’re thinking of is the homophobe Anita Bryant).

        The word “boycott” derived from Charles Cunningham Boycott, a British estate manager who was ostracized by Irish tenants in 1880 in response to high rents and land evictions, and the act of boycotting likely precedes the first use of the word.

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