The Process Was the Punishment: Georgetown Law’s Failure to Stand Up for Speech
I never intended to be a poster boy for cancel culture. Yet, for several months in 2022, I found myself in that terribly unenviable position. Two Georgetown offices were conducting a joint investigation into off-the-cuff comments I posted on social media. Would I be allowed to start my job as the head of a prestigious law school center or would I be terminated for wrongspeak? That was the bizarro world I found myself in. I did not think I was naive about higher education, but still my eyes were opened to the institutional rot in academia—most alarmingly at law schools. Footnote #1 content: See generally Anemona Hartocollis, A Conservative Quits Georgetown’s Law School Amid Free Speech Fight, N.Y. TIMES (June 6, 2022), https://www.nytimes.com/2022/06/06/us/georgetown-ilya-shapiro.html [https://perma.cc/7KX7-C4JN].
When I accepted a position with the Georgetown University Law Center, one of the most prestigious law schools in the most credential-focused profession, I thought it would be an opportunity to have a big impact. After nearly 15 years at the Cato Institute, ultimately directing the think tank’s center for constitutional studies and rising to the level of vice president, I was open to a new challenge. Having developed Cato’s nationally renowned amicus curiae (friend of the court) brief program and published a bestselling book on the Supreme Court, Footnote #2 content: ILYA SHAPIRO, SUPREME DISORDER: JUDICIAL NOMINATIONS AND THE POLITICS OF AMERICA’S HIGHEST COURT (2020). I needed to consider what else I could do in my career. And so, when I received an offer to be the next executive director of Georgetown Law’s Center for the Constitution, I had to take it. The Center was renowned for advancing originalism, the idea that constitutional provisions should be interpreted according to their original public meaning. It was a chance to do something different, to have more of an academic profile while expanding the Center’s footprint.
If I wanted a new challenge, that was what I got—but it was not quite what I had imagined when I was first approached about the possibility over dinner at a Capitol Hill bistro.
On January 26, 2022, five days before I was set to start at Georgetown, Supreme Court Justice Stephen Breyer announced his retirement. Or rather, because his press conference did not happen until the next day, it was announced for him. Rumor has it that White House Chief of Staff Ron Klain leaked the news to lock in Justice Breyer’s decision and ensure that there would be a vacancy for President Joe Biden to fill while Democrats had control of the Senate. Footnote #3 content: E.g., Jim Geraghty, Ron Klain Gave Democratic Senators a Heads Up About Breyer’s Retirement, NAT’L REV. (Feb. 1, 2022), https://www.nationalreview.com/corner/ron-klain-gave-democratic-senators-a-heads-up-about-breyers-retirement [https://perma.cc/F7GR-7XNR]; Callie Patteson, White House’s Klain Leaked Breyer Retirement News: Dem Sen. Durbin, N.Y. POST (Feb. 1, 2022), https://nypost.com/2022/02/01/white-houses-klain-leaked-breyer-retirement-news-dem-sen-durbin [https://perma.cc/HB3M-H34Y]. Indeed, we have not had a Supreme Court confirmation process under divided government since 1991, when then-Senator Biden presided over an explosive set of hearings for Justice Clarence Thomas.
I was on a plane to Austin, Texas, when the news broke. Upon landing, my phone blew up, and I spent the rest of the afternoon fielding media queries about Justice Breyer’s legacy and the search for his successor. My bottom line was that it was unfortunate and unseemly that President Biden was narrowing his candidate pool by race and sex—he had promised during the presidential campaign that he’d pick a black woman Footnote #4 content: Harper Neidig, Biden Pledges to Nominate Black Woman to Supreme Court, THE HILL (Feb. 25, 2020), https://thehill.com/regulation/court-battles/484656-biden-pledges-to-nominate-black-woman-to-supreme-court/ [https://perma.cc/87B8-5J9G]; Sahil Kapur, Biden Pledged to Put a Black Woman on the Supreme Court. Here’s What He Might Have to Do., NBC NEWS (May 6, 2020), https://www.nbcnews.com/politics/2020-election/problem-biden-s-pledge-black-woman-justice-n1200826 [https://perma.cc/Y59S-QRJ3]. —but that whomever he picked would be a reliable vote on the Court’s left wing. After all, it has long been the case that Democratic- appointed justices vote much more in lockstep than their Republican-appointed counterparts do. Footnote #5 content: See Ilya Shapiro, Liberal Supreme Court Justices Vote in Lockstep, Not the Conservative Justices, USA TODAY (Sept. 10, 2019), https://www.usatoday.com/story/opinion/2019/09/10/liberal-supreme-court-justices-vote-in-lockstep-not-the-conservative-justices-column/2028450001 [https://perma.cc/FKE4-LZ23]; Adam Feldman, Changes Are Afoot: Evidence from 5-4 Decisions During the 2018 Term and What This Tells Us About the Supreme Court Moving Forward, EMPIRICAL SCOTUS (July 7, 2019), https://empiricalscotus.com/2019/07/07/changes-are-afoot [https://perma.cc/ET2Q-7P5X].
At a certain point, the immediate media cycle ended, and I went to a dinner celebrating a friend’s new job. Walking back to my hotel from the restaurant, I was feeling festive and feisty. As I doomscrolled Twitter before going to bed—not a best practice—I became increasingly upset about the criteria being applied to the Supreme Court nomination. I asked myself: “If I were a Democratic president, whom would I pick?” I thought about it and concluded: Sri Srinivasan, the chief judge of the U.S. Court of Appeals for the D.C. Circuit, an Obama appointee who had argued 25 cases in the high court and was universally respected for his intellect and legal acumen. Also, he had been born in India and immigrated to Kansas with his parents, so he combined diversity and the American dream. Judge Srinivasan had the potential to have a huge impact as a justice and had been considered for the 2016 nomination that had ultimately gone to Merrick Garland. But he was now preemptively disqualified because of his race and gender.
I fired off a late-night tweet:
Objectively best pick for Biden is Sri Srinivasan, who is solid prog & v smart. Even has identify [identity] politics benefit of being first Asian (Indian) American. But alas doesn’t fit into the latest intersectionality hierarchy so we’ll get lesser black woman. Thank heaven for small favors? Footnote #6 content: Robby Soave, Georgetown Ends Investigation of Ilya Shapiro for Bad Tweet, Will Not Fire Him, REASON (June 2, 2022), https://reason.com/2022/06/02/ilya-shapiro-georgetown-tweet-investigation [https://perma.cc/X5YF-LE74].
In other words, I argued, in stilted shorthand given the platform, that Chief Judge Srinivasan was the best candidate, meaning that everyone else in the entire world was less qualified. So, if President Biden kept his promise, he would pick a less-qualified—or, given Twitter’s character limit, “lesser”—black woman.
Then I went to bed.
Overnight, a firestorm erupted on social media, particularly over those three words: “lesser black woman.” I deleted the tweet and apologized for my inartful choice of words but stood by my view that President Biden should have considered “all possible nominees,” as 76 percent of Americans agreed in an ABC News poll released a few days later. Footnote #7 content: Brittany Shepherd, Majority of Americans Want Biden to Consider ‘All Possible Nominees’ for Supreme Court Vacancy: Poll, ABC NEWS (Jan. 30, 2022), https://abcnews.go.com/US/majority-americans-biden-nominees-supreme-court-vacancy-poll/story?id=82553398 [https://perma.cc/WWH9-ZQ54]. Many politicians and legal commentators made the same point. But it was too late. My ideological opponents were out for blood, or at least my new job, even before I assumed it.
The day after the tweet was the second-worst day of my life, after another January day nearly 25 years earlier, when my mom died. I thought that I had blown up my life and killed my career. Everything I had worked hard for over decades—the sacrifices my parents had made in getting me out of the Soviet Union, the earnest striving of an immigrant kid to get to the Ivy League and work in the halls of power, the life my wife and I were building for our two young sons (who would be joined later that year by boy-girl twins)—all of it was crumbling. Over a tweet.
Never mind that a good-faith reader would not construe what I said to be offensive. It is willful miscomprehension to read my tweet to suggest that “the best Supreme Court nominee could not be a Black woman,” Footnote #8 content: William M. Treanor, Dean William M. Treanor’s Statement on Recent Ilya Shapiro Tweets, GEORGETOWN L. (Jan. 27, 2022), https://www.law.georgetown.edu/dean-william-m-treanors-statement-on-recent-ilya-shapiro-tweets [https://perma.cc/F8QM-GJXJ]. or that I considered black women to be “lesser than” everyone else. Although my tweet could have been phrased better, as I readily admitted, its meaning that I considered one candidate to be best and thus all others to be less qualified is clear. Only those acting in bad faith would misconstrue what I said to suggest otherwise. Only those trying to get me fired for my political beliefs would campaign for my banishment from polite society.
Thanks to friends and allies with public platforms and private back channels to the Georgetown administration, I was not fired during those initial four days of hell. Instead, I was onboarded but suspended pending an investigation into whether I had violated university policies. That investigation continued for more than four months of purgatory, during which I was banned from campus.
It is clear now that the “investigation,” led by Human Resources (HR) and the Office of Institutional Diversity, Equity and Affirmative Action (IDEAA), and advised by the prestigious (and expensive) Washington law firm WilmerHale, was a sham. The process was the punishment. It does not take months to investigate a tweet—or to look at a calendar. Any junior law professor could have applied the law (the short policies at issue, particularly Georgetown’s vaunted Speech and Expression Policy Footnote #9 content: See GEORGETOWN UNIV., HUMAN RESOURCES POLICY MANUAL § 1008: POLICY ON SPEECH AND EXPRESSION (2024), https://policymanual.hr.georgetown.edu/1000-university-policies/1008-policy-on-speech-and-expression [https://perma.cc/9F4M-MYLL]. ) to the facts (an even shorter tweet) and come up with a quick answer—specifically that I had engaged in protected speech that was not discriminating against or harassing anyone. But that did not happen, and as the process dragged on, it became abundantly clear that university officials were just stalling until students left campus.
Indeed, on June 2, 2022, about a week after the semester ended, I was reinstated on the technicality that I was not an employee when I had tweeted and, therefore, was not subject to discipline under the relevant policies. I celebrated that technical victory in the pages of the Wall Street Journal, Footnote #10 content: Ilya Shapiro, My Cancel Culture Nightmare Is Over, WALL ST. J. (June 2, 2022), https://www.wsj.com/articles/ilya-shapiro-georgetown-twitter-kbj-cancel-law-school-supreme-court-appointee-twitter-free-speech-11654211044 [https://perma.cc/YD5F-VVN6]. but after reading the IDEAA report in detail, realized that Georgetown had made it impossible for me to fulfill the duties for which I had been hired. After consulting with colleagues, my lawyer, and other trusted advisers, especially my wife—a better lawyer than any of us—I concluded that remaining in the job I was hired for was untenable.
I recount my reasoning later in this essay, but suffice it to say that Georgetown implicitly repealed its free-speech policy and set me up for discipline the next time I transgressed progressive orthodoxy. Instead of participating in that slow-motion firing, I quit. Footnote #11 content: Ilya Shapiro, Why I Quit Georgetown, WALL ST. J. (June 6, 2022), https://www.wsj.com/articles/why-i-quit-georgetown-11654479763 [https://perma.cc/R5G5-6CHN].
Now, alongside the publication of my book, Lawless: The Miseducation of America’s Elites, about the illiberal takeover of legal education that builds on my experience at Georgetown, I decided to publish the definitive account of that experience with the Georgetown Journal of Law & Public Policy.
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