Podcast: Professor Robert Post Explains Why a Polarized Supreme Court is Nothing New
In this episode of the “Inside Yale Law School” podcast, Sterling Professor of Law Robert C. Post ’77 sat down with Dean Heather K. Gerken for the Law School’s bicentennial. Post discusses his monumental book on the Supreme Court under Chief Justice William Howard Taft, a volume 35 years in the making, and the parallels between the polarized 1920s and our own time. He also delves into artificial intelligence and why he tried to model failure to students when he was Dean.
Sterling Professor of Law Robert Post ’77 is a highly regarded scholar of constitutional law and the First Amendment. In addition to his volume on the Taft Court, he is the author of Citizens Divided: A Constitutional Theory of Campaign Finance Reform (2014). He served as Dean of Yale Law School from 2009 to 2017.
Polarization and the Supreme Court (17:06)
In 2024, Post published The Taft Court: Making Law for a Divided Nation, 1921-1930. Post says a major theme of the book is making law under polarized conditions:
“The 1920s was a time of intense polarization…there was industrial warfare. There was incredible racial violence. The decade was the resurgence of the KKK, 100% Americanism. And the issue was, if you’re a [Supreme Court] justice, how do you speak in the accents that would be received as law rather than as your personal predilections? Which is the same problem the Court has now.”
Related:
In Long-Awaited Volume, Professor Robert Post Tells Story of Taft Court in its Own Time
WATCH: Post discusses the book with the National Constitution Center
Artificial intelligence and internet governance (24:10)
Post is a trustee of the Oversight Board for Meta (formerly Facebook), which reviews Meta’s content moderation decisions. The board reviews about 50 decisions a month out of 3 billion posts, which gives him a perspective on how artificial intelligence can help:
“It’s plain to me that when you’re dealing with communications at the scale of the internet and social media, you can’t have law. Because law requires human judgment. And human judgment doesn’t function at the scale of the internet. So the internet is going to be governed by AI. And the issue will be how you politically legitimate the operation of an AI. And that seems to me the fundamental legal question, political question here.”
Related:
In this video, Post discusses how AI may force society to rethink the parameters of one’s own image as intellectual property:
‘Turning Point in Law’: AI, intellectual property, and the Hollywood strike
Why it’s OK to make mistakes (32:34)
Post speaks about his time as Dean and how he tried to “model failure” to students:
“They [students] were terrified of failing. And so they would take an easier route because they know that they wouldn’t fail if they took it. And to me, you’re not going to succeed, really, unless you do risks. And so I would say, I went to graduate school and I failed. And I went and did this, and I failed. And I would try to model them as like, you fail, and then you get back on your feet, and you’re OK in the end.”
Related:
Reflecting on 200 Years: A Q&A with Former Dean Robert C. Post
Yale Law School Flourishes Under Deanship of Robert C. Post (Spring 2017 Yale Law Report)
