by Christopher Roach
In some ways, Todd Henderson is living the dream. He has worked as an engineer, a management consultant, a practicing lawyer, and ended up as a professor at his alma mater, the University of Chicago Law School, focusing on business regulation and securities law. Now he can add mystery novelist to his curriculum vitae with his debut thriller, Mental State.
The story, as well as the publication’s reception, sheds light on the sometimes toxic culture of our elite and their institutions. For all the talk of “engagement with ideas” and “encouraging critical thinking,” elite universities are more rigid and conformist today than perhaps any previous time in our history—yes, including the dreaded 1950s.
Henderson’s thoughts echo those of another University of Chicago professor who some 30 years ago noted we were experiencing the Closing of the American Mind.
By Chicago’s standards, Henderson is a man of the Right. In reality, he is more in keeping with the law school’s traditions of law and economics and libertarianism, made famous by two prolific and influential emeritus professors, Richard Posner and Richard Epstein. Unfortunately, Chicago is now becoming less distinguishable from peer institutions, not least in its demand for ideological conformity.
Mental State, as well as its tortured path to publication, exemplify this unfortunate trend.
Art Imitates Life
A good mystery or thriller, while not an account of actual events, is fundamentally honest. It presents believable characters and explores their motivations, problems, skills, and flaws. As such, Mental State is a good book, and it will prove to be of particular interest to lawyers, especially those uneasy with the “deep state.”
The story revolves around the supposed suicide of a law school professor, Alex Johnson, who resembles the author in important ways. He teaches at an elite Chicago law school, Rockefeller University, a facsimile of the University of Chicago, right down to the Bauhaus-style law school building.
What appears at first to be a suicide turns into a mystery, as the professor’s FBI agent brother, Royce, suspects the local police are missing something. He goes outside the normal chain of command to learn, not only about the death of his brother but also more about his brother’s life.
The professor is white collar, professional, bookish, surrounded by others of the elite, and variously reflects or rejects their styles. Considering the obvious resemblance to the author, the portrayal is brutal at times, exposing the deceased as flawed and venal, especially in his initial lack of courage in the face of institutional pressure. He is led astray not only by his ambition but also by the modest glamour that comes with being a law professor, such as the international conferences and hero-worshiping students.
His brother, by contrast, has common sense and tenacity, as well as no small measure of physical courage. He is an agent of the system, but he also really believes, as cops often do, in justice and in doing the right thing. The mid-level lawman has a corresponding blind spot to the gap between the ideology of the managerial elite—whose chief qualification consists of credentials bestowed by institutions like the fictional Rockefeller—and the gritty, Machiavellian reality of highly placed ideologues.
As if a suicide and the possibility of murder were not dark enough, the story also involves tolerance of the most grotesque double standards. The liberal president, who vaguely resembles Hillary Clinton, aims to appoint a suitably progressive jurist to the Supreme Court. The potential nominee has the right kind of credentials to ensure that he and the president make history. He would be the first Asian-American justice, has had a brilliant career, is a reliable progressive, and is connected from childhood to the late professor.
But he has a secret, and its exposure would be devastating to his candidacy. Was the professor killed as part of a cover-up?
The book ends up exploring more than one kind of hypocrisy. We learn how the elite looks out for its own and cultivates the future leadership class, selected chiefly for a combination of their academic pedigrees and ethnic diversity. Failing grades can be changed, particularly when they would damage the narrative. Indeed, even high crimes can be overlooked, so long as the cause is at stake. The individual and truth mean little compared to the cause.
This diversity bean-counting and concern for ideological goals have a dark corollary; underprivileged or not, inconvenient people are quickly and callously victimized when this serves the broader goal of advancing the agenda. One is reminded of the crude smear campaign levied against Clarence Thomas, whose black ancestry did little to deflect the mob of leftists that are usually so ostentatiously concerned for diversity. Among the managerial elite, the only kind of diversity that proves fatal, whether to one’s career or one’s life, is diversity of thought.
One of the more interesting aspects of Mental State—which was authored before Donald Trump descended the elevator, but only released this year—is the exploration of an emergent human type: the careerist, left-of-center, deep state bureaucrat. Echoing Peter Strzok, Andrew McCabe, and James Comey (himself a Chicago alumnus), a clique of political and law enforcement insiders at the highest levels of the federal government evince a disturbing willingness to bend any rules to serve the president in her pursuit of the right kind of Supreme Court appointee. After all, in the words of one of the fixers, “Our whole agenda would be in peril. . . . We just couldn’t let that happen.”
This is all fiction, of course. But it is a believable story of what might happen and how. We know strange things are afoot, and not only in the shady origins of the Steele dossier. Consider the aggressive efforts to sink a boy scout like Brett Kavanaugh, coupled with the indifference and slap-on-the-wrist treatment of Bill Clinton and Jeffrey Epstein. We have a powerful elite, concerned not only with ideological goals but equally with shoring up its own power and immunity from oversight.
The strong relationship between elite schools and the upper echelons of the nation’s political and business structures cannot be overstated. The Supreme Court at the moment is made up exclusively of graduates from Yale and Harvard law schools. Facebook’s founders and executives hail from Stanford, Harvard, Yale, and similar institutions. The culture of those elite schools is now becoming the culture of our tech giants and high government officials, up to and including their increasing indifference to free speech, their separation from the country’s more conservative or traditionalist interior, and their Draconian enforcement of the party line.
The most notable change from yesteryear’s elite is that today’s managerial elite makes no distinction between thoughts and actions. For them, good character is demonstrated by expressing the right kinds of opinions, and this low bar allows for extremely low behavior. This inversion of traditional morality ends up being the meta-narrative of Henderson’s novel, which begins as a thriller-mystery but ends up being an important critique of the spirit of the age.
Life Imitates Art
While it has been addressed elsewhere in some detail, one might imagine that a subversive work such as this did not receive the most welcome reception. Mental State was at one point unceremoniously yanked from Amazon and all pre-orders were lost. Amazon, like Facebook, Google, and the other tech monopolists, has decided to leverage its power not only for profit but also for progressive ends.
In addition, the author has received various threats, not only for the book but for making observations that ran counter to the acceptable narrative. Affirmative action—a theme of the plot and a source of controversy earlier this year involving Henderson’s criticism of Justice Sotomayor—depends, above all, on not noticing things. The elite not only must permit lower standards in the service of its group diversity, but its members and the general public must pretend that this is not happening at all. We’re just supposed to conclude the elite as a whole are what they tell us they are: “The best of the best!”
While those struggling in the business world may find much to envy in the protections of tenure, those protections are not what they used to be, particularly for conservatives, who make up a vanishingly small percentage of professors at elite institutions. Worse, they must self-censor if they are to avoid a sometimes violent and always insolent cohort of activist students, the cat’s paw of the equally leftist deans and professors. A sizable number of conservative academics publish their most interesting thoughts using pseudonyms.
This is not just melodrama. What is happening at these schools matters because it is not confined only to universities or at least not for very long. Universities are “beta testing” what will soon appear in the business world, in government, in the military, and in courts of law. This includes the labeling of nearly any right-of-center view as “hate speech,” the use of threats and intimidation against iconoclasts, and the Soviet-Style replacement of due process with “class justice,” as exemplified by the anti-truth formula “believe all women.”
Legal Realism Has Reached Its Logical Conclusion
Henderson and I were students at the University of Chicago’s law school around the same time. Compared to Harvard and Yale, Chicago was something of an oasis, a place of diverse views, vigorous debate, and rigorous scholarship. Scalia taught there for a time in the 1980s, but so did prominent liberal academics, Catherine MacKinnon and Cass Sunstein, as well as then-state-senator Obama. More recent events, including the reception of Mental State and a student-led attempt to kick conservative groups off campus, suggest the monoculture of other elite schools have started to undermine the unique culture of Chicago’s law school.
The roots of these elite law schools’ degradation may have deeper roots in what initially made them so influential. In the middle of the 20th century, each of these schools embraced the cutting-edge approach of legal realism to one degree or another. The alternative to legal realism is what most people think of when they think of law, sometimes called formalism. Formalism still exists in the world of practice, on the bar exam, in court, and at most schools, where the degree leads not to the Supreme Court, but rather the ranks of workaday practitioners. Formalism counsels that law is a closed and self-referential system, the careful and honest study of which can yield, more or less, correct answers to legal questions. It treats law as its own idiom, distinct from opinion, politics, or private morality.
Legal realism—similar to Marxism—suggests that all of this is a mask, an ideology. In its descriptive sense, legal realism teaches that law exists to serve the particular group in power and, by implication, to harm the socially and economically marginal. In keeping with the Progressive Era from which it sprang, legal realism also has a normative aspect: courts, lawyers, and legal educators should aim to fashion legal rulings and legal minds in order to advance the “correct” progressive agenda. The strong inculcation of “realist” views is the chief purpose of Chicago’s famous 1L course, Elements of Law.
Such a vaguely cynical point of view pervades elite legal education. It’s how a 200-year-old Constitution can be tortured to find au courant rights to gay marriage and abortion, while disregarding hoary guarantees like the right to bear arms. Wordy legal opinions mask this reality by design, appearing on the surface to involve the careful weighing of precedents and the precise applications of five-part tests.
But one may safely assume legal realists know the score; after all, everything in their education told them the law is just a tool, not an inherent limitation upon both the governed and the governors.
Legal realism planted the seed that grew into the contemporary decadence of the law’s elite ranks. After all, if all the robes, oaths, and judicial opinions are just a mask for the real reasons things are done—advancing progressivism—then perhaps other more egregious deviations from the formal constraints of the law may be authorized. It all comes down to the seductive lure of power masquerading as higher order wisdom and sophistication, a combination of “the end justifies the means” and “everyone is doing it.”
One thing these elite schools do undeniably well is select for intelligence. Through LSATs and undergraduate grades and thousands of applicants for comparatively few slots, the elite schools gather truly brilliant young people from every corner of the country and then dispatch them to the centers of power: New York, Los Angeles, Washington D.C., San Francisco, and Chicago.
The slow decline of the nation’s institutions and the increasing cleavage between the governed and the elite suggests that our governing elite should be chosen and educated in a different fashion.
Law and governance are not only about intelligence but also about character. But very little in the selection process for elite law school distinguishes the wise and the good from the merely clever. Worse, the pervasive “realism” of these institutions encourages the least mature and malformed characters to also pursue naked power. The product of a Yale or Chicago is far more likely to resemble the power-hungry and deceptive Mark Zuckerberg or James Comey than an Atticus Finch.
“Who guards the guardians?” The age-old question of Cicero does not suggest an easy answer, but one answer is the law, properly understood as containing limits. Mental State shows the pit into which a self-satisfied, clever, arguably well-intentioned, but ultimately immoral, elite may sink when the law is viewed not as a restraint, but as a mere mask. And, more frighteningly, Mental State asks what kind of ugliness we may encounter when we dare to look behind the mask.
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Christopher Roach is an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, The Journal of Property Rights in Transition, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.
Photo “Todd Henderson” “Mental State” by Down-and-Out Books.
