When he was a young social worker in St. Louis, Roger Baldwin was briefly engaged to Anna Louise Strong, who later published more books in defense of the Russian Bolsheviks and Chinese Maoists than any other English-speaking author and ended up buried in a revolutionary martyrs’ cemetery in Beijing. The reason for their breakup was Anna’s controlling nature. She tried to make Roger give up cigarettes, drinking, and cards. “I love her but I love my independence more,” he wrote to a friend. The lovebirds enacted in a few months the same relationship that would play out over decades between the Communist Party and the organization that Baldwin was to found in 1920, the American Civil Liberties Union: sweet words, passionate embraces, followed by repudiation in the name of freedom.
There was a time when the ACLU was practically a Communist front group. Its board of directors was stacked with card-carrying party members and fellow travelers. Baldwin himself visited the Soviet Union in 1927 and came back full of praise. When his Harvard alumni committee sent him a political questionnaire in 1935, his answer concluded with the words: “Communism is the goal.” All that changed around the time of the Stalin-Hitler pact in 1939. The ACLU purged Communists and sympathizers from positions of leadership with a thoroughness that even its detractors had to acknowledge.
Bill Donohue, famous today as the head of the Catholic League, as a young man obtained his PhD in sociology at New York University with a dissertation on the ACLU, which he developed into the book The Politics of the American Civil Liberties Union (1985). Naturally, his book is critical of the organization, calling it “the legal arm of the liberal-left,” but even Donohue concedes that this characterization “was not true of the Union’s record in the 1940s and 1950s (the ACLU was truly worried about the threat of communism at that time).”
The ACLU really did stand for sincere liberalism during the middle decades of its existence, and perhaps for even longer than that. In the 1990s, when New York City’s Ancient Order of Hibernians wanted to keep a gay pride float out of its century-old St. Patrick’s Day Parade, the local affiliate of the ACLU took the parade organizers’ side. From the 1980s until recently, ACLU lawyers filed numerous amicus briefs against ordinances that banned protest and prayer outside abortion clinics, even though the organization was institutionally pro-choice and had its own “reproductive rights” division. For ACLU lawyers, it was a point of pride that they defended the free speech rights of pro-lifers with whom they disagreed.
Recently, something changed. Impartial liberalism is no longer the ruling ideology at the ACLU. The organization’s social media accounts now regularly weigh in on matters in which civil liberties either are not at issue or seem to lie on the other side. When Kyle Rittenhouse was acquitted on grounds of self-defense after shooting three assailants at a protest in Kenosha, Wisconsin, the ACLU Twitter account lamented that Rittenhouse “was not held responsible for his actions.” In a departure from longstanding practice, the organization began making political ads on behalf of candidates, $25 million worth in the 2018 midterm cycle. A million dollars were spent on an ad opposing Brett Kavanaugh’s Supreme Court confirmation, not because of his legal views but because he had been accused, on flimsy evidence, of sexual assault.
In 2018, a memo titled “ACLU Case Selection Guidelines: Conflicts Between Competing Values or Priorities” formalized the end of the old era. Due to “limited resources” and the ACLU’s need “to recruit and retain a diverse staff,” its lawyers would now avoid taking clients whose “views are contrary to our values.” Among the criteria its lawyers would use when choosing cases were “the potential effect on marginalized communities” and the “harmful impact on the equality and justice work to which we are also committed.”
The ACLU had come full circle. The new generation of left-wing “woke” lawyers is trying to impose on the American justice system the attitude to the law that prevails in Communist countries, where the most important question in any trial is whether a person belongs to a favored class, and where rights such as free speech and the presumption of innocence are derided as bourgeois proceduralism. And they are well on their way to succeeding.
After Donald Trump’s election in 2016, the ACLU was inundated with donations. The organization had always done well under Republican presidents—membership rose by more than 50 percent in the 1980s, dropped by 20 percent during the 1990s, then increased by 50 percent during George W. Bush’s first term—but this most recent surge was unprecedented. The combined revenue of the ACLU and the ACLU Foundation in 2017 was more than double the previous year’s, and donations stayed at that level throughout Trump’s term in office. In 2021, revenue was $395 million, more than triple the pre-Trump figure.
The leader who presided over this windfall was Anthony Romero, the first openly gay man to lead the ACLU, the first Latino, and the first executive director in thirty years to come from outside the organization—in his case from the Ford Foundation, where he was director of Human Rights and International Cooperation. He took the money and went on a hiring spree.
The new hires did not always share the commitments of the older generations. They were Millennials and Zoomers, born after 1980, marinated in identity politics. It’s no coincidence that many of the gaffes that first alerted the public to the new atmosphere over at the ACLU occurred on its social media accounts. The ACLU Twitter account in November 2018 denounced a new Department of Education rule that would have provided due process protections to college students accused of sexual assault. The tweet charged that the rule “promotes an unfair process, inappropriately favoring the accused.” The ACLU later clarified that it did support many of the new protections and the tweet had been an impromptu reaction from a staffer in the women’s rights division.
It was not just that the young people cared more about identity politics than their elders did. They believed that identity politics discredited the liberal rights the ACLU used to stand for. “First Amendment protections are disproportionately enjoyed by people of power and privilege,” said Dennis Parker, former head of the ACLU’s Racial Justice Program. Among the changes in the 2018 case selection memo was the provision that “in speech cases raising racial justice issues, at a minimum, staff in both the Racial Justice Project and the Speech, Privacy, and Technology project should be consulted.”
The right to refuse medical treatment, which the ACLU had always defended when it was Jehovah’s Witnesses refusing blood transfusions, went out the window during the coronavirus pandemic due to concerns about the disease’s impact on minorities. “The real threat to civil liberties comes from states banning vaccine and mask mandates,” two ACLU staffers wrote, counterintuitively, in the New York Times, because mandates protect “communities of color hit hard by the disease.” The ACLU joined multiple lawsuits against states that had overturned or prohibited mask mandates, including Virginia, Iowa, and South Carolina, on the grounds that those laws discriminated against children with disabilities.
Chase Strangio is a representative example of the new generation of ACLU lawyers. Strangio, who was born a woman and adopted a trans identity in law school, is deputy director of the ACLU’s Transgender Justice department. Transgender rights have been a lively field for ACLU litigators in recent years. The ACLU and its state affiliates have sued prison systems across the U.S. to force them to house men who identify as female in women’s prisons. The New Jersey inmate who was reported last year to have impregnated two fellow prisoners was housed in a women’s facility due to a legal settlement with the state ACLU.
Strangio is more committed to the cause of transgenderism than to old-fashioned rights such as free speech. When Target announced that it would stop selling Abigail Shrier’s book Irreversible Damage: The Transgender Craze Seducing Our Daughters, Strangio gloated on Twitter. “Abigail Shrier’s book is a dangerous polemic with a goal of making people not trans,” Strangio wrote. “We have to fight these ideas which are leading to the criminalization of trans life again.” And then in a tweet that was later deleted: “Stopping the circulation of this book and these ideas is 100% a hill I will die on.”
You might say that Romero and his managers should have screened their new hires more carefully to make sure everyone was on board with basic ACLU principles, such as not banning books. But considering the quality of graduates elite law schools are turning out, they probably could not have found any more suitable lawyers than the ones they hired. Students at elite law schools have made headlines repeatedly in recent years for shouting down speakers and calling for the firing of dissenting faculty. When senior lecturer Ilya Shapiro was hounded from Georgetown Law over innocuous comments about a Supreme Court nominee, among the student groups calling for his firing was the Georgetown Law chapter of the ACLU.
In 2022 the American Bar Association voted to mandate that all accredited law schools educate students on “their obligation as future lawyers to work to eliminate racism in the legal profession.” Many schools already offered courses on critical race theory or included its themes in mandatory courses. One first-year property law professor at Georgetown has slides in her day one lecture that read, “Property law must contend with its birth in Native dispossession and the enslavement of African Americans,” and “Possession is a legal term of art for a settler capitalist society.”
Instead of venerating the Bill of Rights, as the old ACLU used to do, the new generation of lawyers denigrates it as a relic of white supremacy and patriarchy. The Dobbs decision in June brought out a round of vituperative left-wing Constitution-bashing. “Neither the constitution nor the courts—nor the f*cking illusion of ‘democracy’—are going to save us,” a Yale Law student posted on Instagram. “How can we possibly expect a document drafted by wealthy, white, landowning men, to protect those who face marginalization that is the direct result of the very actions of the founders?” According to LinkedIn, in the summer of 2022, that student was working as an intern at the U.S. Justice Department.
American anthropologist Inga Markovits was conducting an ethnographic study of the East German legal system when the Berlin Wall fell. On September 6, 1990, she was present at the massive gathering in the city courthouse at which East German judges and prosecutors waited to be told what would become of their careers. The West German justice minister walked in and announced that they would be temporarily suspended from duty until the government could determine each individual’s suitability for working in the new system. “We can’t just take everyone. You must understand, you are coming from an Unrechtsstaat into a Rechtsstaat”—from a lawless regime to the rule of law.
“At the word ‘Unrechtsstaat,’ a wave of indignation runs through the room,” Markovits records. As far as the East Germans were concerned, they had the rule of law. They were right. There was no detention without trial under Honecker, East Germany’s Communist leader. Laws were written down. The free world might not have liked East Germany’s laws against dissent, but those laws had been enacted legitimately and convictions secured under them were not arbitrary but required evidence. In her interviews, Markovits asked the East German judges whether a phone call from a powerful party member had ever changed their verdicts. They were all scandalized by the suggestion. That would have been a betrayal of their duty.
This does not mean that socialist and capitalist justice were the same. Each trial in East Germany had to be observed by a lay assessor, representing the proletariat. In disputes between a landlord and a tenant, or an employer and a worker, the socially disadvantaged party would be favored in matters of interpretation. In order to emphasize the collective over the individual, judges were encouraged to “generalize a conflict” (einen Konflikt verallgemeinern): “interpreting a specific controversy as a symptom of underlying social tensions and finding a solution that would not only right individual wrongs but also address their causes, prevent their recurrence, and thus ensure collective peace.”
Entitlements such as the right to a job were given priority over liberal formalities such as property rights. The East Germans looked down on bourgeois rights as hollow, a pretense of neutrality meant to distract people from the fact that capitalism is a rigged game. How can we say that a boss and a worker enjoy equal rights, they asked, if one of them can be fired for speaking his mind? When the statue of Justice outside the Dresden courthouse was replaced in the 1950s, the East Germans made sure to depict her without her former blindfold. “The bandage, so we were told, was a deliberate deception of the people by the bourgeois rulers,” one lawyer explained.
A justice system like this one is entirely compatible with the rule of law. It could be introduced here in the United States without disturbing any of the procedural safeguards that have existed for centuries—habeas corpus and trial by jury and protection against illegal search and seizure. But the result would be an entirely different kind of legal system. The spirit of equality before the law, which has been the guardian of our liberties since medieval times, would be dead.
We are inching toward such a system already. The civil rights revolution, now well beyond its heroic phase, has made its protected classes into aristocrats under the law. If an aristocrat is disrespected or made to feel uncomfortable, the law demands a remedy. Those groups that do not qualify for protection under these laws are treated as were class enemies under East German law. They can be made to bear any sacrifice, lose any fundamental freedom, for the benefit of the legally protected. This, incidentally, is the real meaning of privilege: private law, different codes for different classes.
The ACLU once stood against this development. The national organization used to consider racial discrimination and “reverse discrimination” equally illegal. The New York Civil Liberties Union opposed racial quotas for seats on Mayor John Lindsay’s proposed police review board in 1966. Then, in 1971, the ACLU dropped its opposition to reverse discrimination. It endorsed left-wing theories of disparate impact, and its South Carolina affiliate even sued to have the state bar exam invalidated as unconstitutional because not enough black lawyers were passing it. Now, with its LGBTQ activism, the ACLU is on the front lines of pushing this type of law further.
Even in its best years, when the ACLU was true to its liberal mission, it was still a pernicious force in American life. These were the people who made high-school principals paranoid about the faintest hint of religiosity on school grounds, who hemmed in parochial schools with all kinds of absurd rules about whether parents’ tax dollars could pay for buses, textbooks, or speech therapists. They once sent someone to follow Congressman Henry Hyde into a Catholic church in order to collect evidence that his pro-life position was a product of his religious beliefs and thus a violation of church-state separation.
But it is no use saying the ACLU was always this bad. It was not. That would be like saying Roger Baldwin was wasting his time purging all those Communists back in the 1940s. As bad as liberals are, Communists are worse.
Is the solution to urge the ACLU to return to neutral liberalism? That seems unlikely. It would be strange indeed for conservatives to take up the cause of liberalism now that its former champions have abandoned it. Even if it were possible to rediscover neutral liberalism as a cross-ideological common ground—and it is not—conservatives would still be better off pursuing other theories of law based on concepts closer to their tradition, such as the common good.
There is one means of restraining the woke that we all can insist upon, liberals, originalists, and integralists alike, and that is a return to professional standards. Professional standards have nothing to do with politics. They developed at the beginning of our civilization—think of the Hippocratic oath—as a way of compensating for the imbalance of power between professionals and their clients. When a man needs a doctor or a lawyer, he generally needs one desperately at a moment of great personal vulnerability. Once he hires one, he must take the advice he receives on faith, lacking the expertise to evaluate it himself. Professionals therefore find themselves in highly advantaged positions. In order to avoid becoming clerisies or cartels, the professions have developed strict codes of conduct and an ethos of duty.
Liberalism says that everything the state touches must be neutral in every respect. Professional standards say something more modest: that certain actors have a duty to be neutral when acting in positions of trust. The standard legal ethics textbook states, “A lawyer is a fiduciary, that is, a person to whom another person’s affairs are entrusted in circumstances that often make it difficult or undesirable for that other person to supervise closely the performance of the fiduciary. Assurances of the lawyer’s competence, diligence, and loyalty are therefore vital.” Supreme Court Justice Benjamin Cardozo put it more poetically:
Many forms of conduct permissible in a workaday world . . . are forbidden to those bound by fiduciary ties. A trustee is held to something stricter than the morals of the market place. Not honesty alone, but the punctilio of an honor the most sensitive, is then the standard of behavior. As to this there has developed a tradition that is unbending and inveterate.
Wokeness is hostile to this ethos. In 2011, when the Defense of Marriage Act was being challenged in the courts, pressure from gay activists forced the law firm King & Spalding to drop its defense of the law. The partner who wanted to continue defending DOMA, Paul Clement, was forced to leave the firm and provide this defense independently. “Representation should not be abandoned because the client’s legal position is extremely unpopular in certain quarters,” Clement said in his resignation statement. This would once have been an uncontroversial expression of one of the most basic principles of our adversarial system, that every client deserves representation.
Left-wing hostility to the basic rules of the game culminated in the Dobbs leak. Supreme Court deliberations and decisions have always been protected by the strictest codes of confidentiality. In May 2022, in an unprecedented breach, an unknown person leaked Justice Samuel Alito’s draft decision overturning Roe v. Wade to reporters at Politico. The identity of the leaker has not been discovered, but the logical motivation would have been to spook one of the moderate conservative justices into changing his or her vote. A professor at Yale Law told a reporter that he assumed the leaker was a liberal “because many of the people we’ve been graduating from schools like Yale are the kind of people who would do such a thing. They think that everything is violence. And so everything is permitted.”
Other professions are going the way of the law. Investment firms are smuggling racial quotas into financial decisions, in disregard of their fiduciary duty to their clients. During the coronavirus pandemic, several states began rationing life-saving medical care by race, with Minnesota’s black teenagers receiving priority over its white sixty-four-year-olds despite the latter’s greater risk of hospitalization and death. In 2022, a medical student at Wake Forest University joked on Twitter that a patient had made fun of her pronoun pin, so “I missed his vein so he had to get stuck twice.” When Fox News did a story on this seeming breach of medical ethics, the school closed ranks around the student. Recently I spoke to a doctor who said that residents at his hospital now regularly make jokes behind the backs of patients who are Trump supporters. “In my day, medical ethics meant it didn’t matter whether a patient was a drug dealer or a millionaire, you treat everybody the same,” he lamented.
Let us make the last two years—say, between the medical profession’s absurd posturing during the summer of Black Lives Matter in 2020 and the Dobbs leak in 2022—the high-water mark of the woke attack on professionalism. Left-wing doctors and lawyers today are always talking about privilege. Let them pause and examine the type of privilege they indisputably enjoy, that of professionals.
Lawyers refer to one another as “brothers or sisters of the bar,” an antiquated phrase that reminds them they are all servants of a greater enterprise, the legal system, on which the rest of society depends for its continued functioning. A lawyer who takes a client, like a doctor who sees a patient or a banker who accepts a client’s funds, must always remind himself that the client is in a real sense at his mercy. Maybe as a private citizen he has strong disagreements with the client. As a professional, he has a moral obligation to act as his devoted servant. Willingness to subordinate your opinions to your duties is the price you pay for the money, the status, and, most of all, the power over others that come with being a professional.
An appeal to the ACLU to start being good liberals again is not likely to cut much ice, especially when many of us exhorting them are not good liberals ourselves. But we can demand that lawyers act like lawyers. Condemning the Dobbs leak, or any campaign to ostracize a lawyer simply for taking a client, should be the bare minimum required for professional self-respect. If the ACLU believes that transgender rights are an issue within its remit, then by all means it may continue to advocate them. But it should reverse its policy of rejecting unpopular clients due to the organization’s need to “recruit and retain a diverse staff.” If the diverse staff don’t like the ACLU’s core values of free speech and equality under the law, then they should find a different place to work. And if they don’t like the Bill of Rights, they should find a different profession.
When the Communists said that liberal freedoms such as the sanctity of a man’s home or his right to free expression were bourgeois ruses, that was projection. They meant that they had no respect for these freedoms but would use them instrumentally in order to bring about their revolution. Liberals really do care about these freedoms, the Norman Rockwell freedoms, the freedoms that allow Atticus Finch to make a courthouse into a little island of equality in 1930s Alabama.
Conservatives care about these freedoms, too. We might not appeal to John Locke and J. S. Mill in order to defend them, but we have our own traditions, going back at least to the Bill of Rights. Some liberal freedoms introduced in the 1960s—including many championed by the ACLU—were spurious, but we can all agree on equality under the law, over against the Communist belief that rules don’t apply to favored classes and rights don’t apply to disfavored ones. This is the kind of equality that ACLU lawyers can and should rediscover within their storied institution and impose on their young radicals. Anyone who cannot subscribe to those commitments is not only unfit to work for the ACLU, but unfit to be a lawyer.
Helen Andrews is senior editor at the American Conservative.
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