JOHN ADAMS, LEGAL REPRESENTATION, AND THE “CANCEL

JOHN ADAMS, LEGAL REPRESENTATION, AND THE

“CANCEL CULTURE”

EUGENE SCALIA

We recently celebrated the 100th anniversary of Justice Holmes’s

famous articulation of the value of free speech in his dissent in

Abrams v. United States.

The First Amendment embodies the view,

Holmes wrote, that “the ultimate good desired is better reached by

free trade in ideas.”

It is “the theory of our Constitution” that “the

best test of truth is the power of the thought to get itself accepted in

the competition of the market.”

Now, I admit to some doubt that fundamental truths are estab-

lished in the same manner as the value of pork bellies. But Justice

Holmes was right that the free exchange of ideas is at the core of

the First Amendment and at the heart of our democratic govern-

ment. And yet it is disfavored in some quarters today. That is most

apparent at colleges and universities where conservative speakers

have been disinvited, banned, assaulted, and—when allowed to

speak—accused of harming students merely by expressing ideas

Secretary of Labor. The following is an excerpt from Secretary Scalia’s address at

the 2019 Federalist Society’s National Lawyers Convention. It has been edited for

length and clarity.

. 250 U.S. 616 (1919).

. Id. at 630 (Holmes, J., dissenting).

. Id.

334 Harvard Journal of Law & Public Policy [Vol. 44

that run counter to some students’ preconceptions.

This intoler-

ance is not isolated to our universities; it is a broad trend, so much

so that it has drawn criticism from former President Obama.

Intolerance and pressure to suppress ideas that may be unwel-

come to some poses a special threat to the legal profession. One of

the great traditions of the profession is respect for the right to rep-

resentation of those with whom we disagree, and even to undertake

that representation ourselves. John Adams’s defense of the British

soldiers charged with the Boston Massacre is one of the Nation’s

most important stories about the practice of law. Adams later de-

scribed his defense of the soldiers as “one of the most gallant, gen-

erous, manly, and disinterested actions of my whole life.”

. See, e.g., Peter Beinart, A Violent Attack on Free Speech at Middlebury, THE ATLANTIC

(Mar. 6, 2017), https://www.theatlantic.com/politics/archive/2017/03/middlebury-free-

speech-violence/518667/ [https://perma.cc/DE9G-FJNH] (recounting how student riots

prevented Charles Murray from speaking and sent a Middlebury professor to the hos-

pital); Morgan Baskin, Cal State L.A. cancels conservative speaker, speaker coming anyway,

USA TODAY (Feb. 24, 2016), https://www.usatoday.com/story/college/2016/02/24/cal-

state-la-cancels-conservative-speaker-speaker-coming-anyway/37413335/

[https://perma.cc/XDA8-3MNZ] (Ben Shapiro’s invitation was revoked by California

State University Los Angeles after students and faculty complained “Shapiro's remarks

would promote ‘racist, classist, misogynist, sexist, homophobic’ speech.”); Kristina

Sguelglia, Condoleezza Rice declines to speak at Rutgers after student protests, CNN (May 5,

2014), https://www.cnn.com/2014/05/04/us/condoleeza-rice-rutgers-protests/in-

dex.html [https://perma.cc/GN8C-35JM] (Condoleezza Rice declined to speak “at the

Rutgers University commencement this year, following student protests against her

appearance.”).

. See Ashe Schow, Obama defends free speech in comment on campus protests, WASH.

EXAMINER (Nov. 16, 2015), https://www.washingtonexaminer.com/obama-defends-

free-speech-in-comments-on-campus-protests [https://perma.cc/W5E3-6AWR] (“I've

heard of some college campuses where they don't want to have a guest speaker who is

too conservative or they don't want to read a book if it has language that is offensive to

African-Americans or somehow sends a demeaning signal toward women. I've got to

tell you, I don't agree with that, either. I don't agree that you, when you become stu-

dents at colleges, have to be coddled and protected from different points of view.")

. DAVID MCCULLOUGH, JOHN ADAMS 68 (2001).

No. 2] Legal Representation and the “Cancel Culture” 335

Adams was not our most modest Founder. But on this he was

right. It is appropriate, admirable, and necessary for lawyers to take

on clients and advance positions that may offend some observers;

in this sense lawyers have a professional commitment to the free

trade in ideas praised by Justice Holmes. They should be among its

staunchest defenders and should recognize, too, in Justice Jackson’s

words, that the “freedom to differ is not limited to things that do

not matter much.”

There are growing indications, however, that our most powerful

law firms have become uncomfortable with this commitment. Last

term the Supreme Court decided the “DACA” case, concerning

President Trump’s cancellation of the Obama Administration pro-

gram under which certain young people who entered the country

illegally received forbearance from deportation.

By my count,

twenty-five large law firms filed amicus briefs opposing the Presi-

dent’s action, on top of the three large firms representing the plain-

tiffs. Not a single large firm filed a brief supporting the Administra-

tion’s position.

Similarly, in the same term, the Court decided a case concerning

whether Title VII’s prohibition of sex discrimination includes dis-

crimination based on sexual orientation.

Around twenty large law

firms filed amicus briefs supporting plaintiffs in a broad reading of

Title VII; not a single large firm filed a brief supporting the defend-

ant.

As should be apparent from my remarks thus far, I have no ob-

jection to any of these firms providing the representation they did.

I congratulated colleagues at my former firm on their successes in

left-of-center representations; I may have disagreed with their cli-

. W. Va. State Bd. of Educ. v. Barnette, 319 U.S. 624, 642 (1943).

. Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 139 S. Ct. 2779 (2019).

. Bostock v. Clayton Cty., 139 S. Ct. 1599 (2019).

336 Harvard Journal of Law & Public Policy [Vol. 44

ents and legal arguments, but I respected their lawyering and free-

dom to take the matter on.

My concern is not the particular posi-

tion taken by any individual firm in any specific case, but the com-

plete absence of any large firm on the other side of either of those

two recent Court cases, and a similar imbalance in other cases in-

volving hot-button issues.

Everyone familiar with the practice of law knows that these lop-

sided representations had nothing to do with the legal merits of the

two cases, or an absence of lawyers at large firms who would have

been interested in representing a client on the other side. There are

lawyers in large firms who would have welcomed the opportunity

to file a brief supporting the government’s position in the DACA

case or supporting the defendant employer in the Title VII case.

One factor preventing that, in these and other cases I believe, is

self-censorship. Elite law firms are hesitant to let their lawyers get

involved in cases that might generate criticism from the left or that

conflict with the views many lawyers in the firm hold personally.

Second, and related, firms fear repercussions from certain well-

heeled corporate clients if they take positions disfavored by pro-

gressives. And sadly, there’s reason for that concern. Some years

ago, a prominent law firm was pressured by clients to end its rep-

resentation of the House of Representatives in connection with the

Defense of Marriage Act. To his credit, former Solicitor General

Paul Clement, the lawyer for the House, left the firm in response.

In the aftermath of that episode, I believe that firms are even more

hesitant to get involved in high-profile, controversial cases taking

right-of-center positions. Today, it is difficult for certain clients to

obtain representation from our top law firms because the firms fear

repercussions for doing so. Fortunately, smaller, boutique litigation

. These remarks should not, therefore, be construed as a criticism of that firm,

which represented some of the DACA plaintiffs.

No. 2] Legal Representation and the “Cancel Culture” 337

firms often step in to provide representation. But it remains trou-

bling that the largest law firms increasingly shrink from represent-

ing clients in right-of-center positions in controversial cases. John

Adams would be concerned by this trend, and it should trouble the

legal profession too.

Lawyers should be leading defenders of Justice Holmes’s vision

of a free trade in ideas. Law firms should pride themselves, as they

have in the past, on representing people and positions that are dis-

favored in some quarters. They should educate the public that a

firm’s representation of a particular client or its presentation of a

particular position does not necessarily reflect its lawyers’ personal

views, much less the position of the firm itself. And firms should

staunchly push back on clients who seek to judge or muscle them

because of the firm’s representation of another client.

Corporate executives cannot be expected to know, respect, or de-

fend the values of the legal profession. That is the role of members

of the bar. Firms therefore must explain to clients that no single rep-

resentation defines the firm. The firm will allow its lawyers to pro-

vide pro bono representation to murderers without approving of

murder. Its lawyers will represent companies charged with securi-

ties violations without approving of defrauding widows and or-

phans. And its lawyers will represent the Little Sisters of the Poor

without, heaven forbid, accepting the teachings of the Catholic

Church.

This independence of the lawyer from his client is integral to the

freedom and autonomy that are among the privileges of private

practice, and it is essential to lawyers’ effective performance of their

role in our system of justice. Among other things, it facilitates firms’

representation of corporate clients accused of troubling miscon-

duct. Today, a corporation accused of environmental crimes objects

to a lawyer at its outside law firm filing a brief in support of the

unborn. Tomorrow, why can’t someone schooled in today’s cancel

338 Harvard Journal of Law & Public Policy [Vol. 44

culture use the same logic to attack the firm for defending that com-

pany’s environmental depredations?

To answer, “this is differ-

ent—we profit from this work,” is not going to satisfy critics in a

culture that devalues the First Amendment, and which has lost

sight of the special place and independence of members of the bar.

Instead, firms must be prepared to explain that attorneys at the firm

represent diverse clients advancing a range of positions, and posi-

tions taken on behalf of a client are not thereby the position of the

firm. Rather, representing a person with whom we may disagree is

a hallowed, essential tradition of the profession.

* * *

A central reason many of us attend meetings like this is the Fed-

eralist Society’s commitment to the principle I’ve been discussing:

the free exchange of competing ideas. As has been observed in the

past, if this were an organization dedicated to promoting one single

narrow-minded view of the law, it invites the wrong people to

come talk. I hope that when you return home, each of you has oc-

casion to promote these First Amendment principles within our

profession as a whole.

. See Umair Irfan, The surprising protest of Exxon’s law firm at Harvard Law, VOX (Jan.

16, 2020), https://www.vox.com/2020/1/16/21067763/harvard-law-climate-protest-

exxon-paul-weiss [https://perma.cc/UM8P-RJTL] (“A group of Harvard Law School

students on Wednesday shouted down speakers and stalled a campus recruitment din-

ner hosted by a major law firm that represents fossil fuel interests in climate change

lawsuits.”).