I'd especially like to thank Walter for his exceptionally moving reflections before and after the schools case came down on the real life meanings of segregation and racial difference in this society--truly America's original sin passed down from generation to generation (and thanks for the Charlie Black quote!).

I'm not generally such a great fan of Justice Holmes, but I do believe the arid syllogisms that Roberts and Alito seem so drawn to, miss the life of the law in compassion for the exigencies of human experience and suffering.

Law has all too often in our history (particularly on racial issues) been more an instrument of oppression than of redemption. A generation of us grew up during the Warren Court era (and following on the post-1938 FDR Court), believing that something fundamental had changed. Many of us were inspired to become lawyers, and some of us law teachers, to further our collective quest to become a more just society. We are now learning, to our horror, that what we mistook for a fundamental change was a mere interlude in an unhappy larger story.

It is not clear to me, at this moment, why idealists should pursue a legal vocation, or how some of us can continue to teach, except perhaps as oppositional figures.

I think I need to reread Bob Cover.

The Wise Bard (YLS 1977)

I share your sentiment that the rise of the Roberts Court (and for that matter the conservative takeover of the federal judiciary over the past 25 years, of which the Roberts Court is its ultimate manifestation) is disheartening and demoralizing to those who had come to believe that law in the modern era can and should be a powerful instrument in achieving social justice.

Nonetheless, I don’t concur in your doubt—justifiable under current discouraging circumstances—as to “why idealists should pursue a legal vocation or . . . can continue to teach.” On the contrary, legal idealists fighting for social justice are needed now more than ever.

What is happening now on the Court is part of the larger reactionary conservative movement that has sought to dismantle the fundamental changes made by and flowing from the New Deal, the Great Society, and the civil rights movement—changes that have made this nation much more fairer, inclusive, and just. The goal of this conservative counter-revolution is to have society revert back to some fictionalized notions of “traditional” values that existed before the New Deal--typified by the oppressive19th Century laissez-faire economic, political and social order. While Reagan and Bush I & II had largely failed to accomplish this attack through executive power, and Gingrich through legislative power, the Rehnquist and now the Roberts Courts have increasingly succeeded through judicial power.

However, this struggle for the soul of our nation is far from over. Which is precisely why a new era of legal idealists are needed to repel these reactionary forces and fight to preserve the hard won progressive gains of the past, and hopefully in the future build upon these gains to move the nation forward.

And to those of you who teach—I came of age in law school during the heart of darkness of the Reagan 1980’s and was inspired to seek a career in public interest law in large part due to the examples set by several progressive law professors. I remember at that time only a handful of my fellow law students even considered practicing public interest law, since the 1980's was the "me generation” and they could easily earn three to four times more in private practice. I’ve been heartened to see that over the past 10 years or so an increasing number law students seriously considering doing public interest law, as evidenced by significant numbers of students each year applying for summer internships with public interest law offices throughout the state where I practice.

The role of legal idealists is not to strive for some unattainable utopian society, but to give voice to those who have been and continue to be oppressed and marginalized, and in the process, using law to hold the nation accountable towards fulfilling the best of its ideals. It is a struggle that must be continued and one that certainly still is worth fighting.