There is a crisis of faith in Constitutional Law, and as Jesse Wegman notes, it’s changed the way law professors look at it and teach it.
“Teaching constitutional law today is an enterprise in teaching students what law isn’t,” Leah Litman, a professor at the University of Michigan law school, told me.
Litman is about as die-hard a progressive prawf as they come, and her quote, the first proffered by Jesse in support of his contention, speaks volumes. As a trench lawyer, I’ve taken issue with many Supreme Court decisions over the years, from the dreaded Whren to Heien, and every decision that loves drug-sniffing puppies more than facts. And don’t get me started on the Reasonably Scared Cop Rule of Graham v. Connor.
Notably, none of these cases were decided since Trump appointed three judges to the Court. Or to put it another way, the Supreme Court has been making what I consider to be bad law for generations. It did not just start with Trump’s three appointees.
Rebecca Brown, at the University of Southern California, has been teaching constitutional law for 35 years. “While I was working on my syllabus for this course, I literally burst into tears,” she told me. “I couldn’t figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I’m feeling very depleted by having to teach it.”
If you can’t prepare a syllabus for Con Law without bursting into tears, should you be teaching it? Having suffered the indignities of decisions I disagree with and, well, hate, over the past few decades, there are two overarching things to remember. First, that I’m not on the Supreme Court and don’t get a vote, no matter how well I think of my own opinions. Like it or not, there is a Supreme Court and it gets to make decisions that control the state of constitutional law. My job is to know how to work within the system and make the best of it for my clients, no matter how much I disagree with SCOTUS. The only way I, or any lawyer, can do so is to know the law, understand how the system works and learn how to use it to my clients’ advantage. In other words, I don’t get to just scream “you suck” at the Court and go home, leaving my client standing there holding.
Second is that every lawyer knows that you win some and lose some, and the notion that we deserve to win because we’re the good guys is childish. There have been a spate of extremely troubling and controversial decisions in the past few years, and it’s understandable that much of the angst and hype has given rise to a pervasive belief by the general public that the current court majority is made of partisan hacks willing to sacrifice institutional reason and integrity for the sake of checking of boxes on its reactionary agenda.
But bad as we may sincerely, even correctly, believe some of these decisions to be, they are still the decisions of the Supreme Court of the United States. If law students are taught them, taught to understand them and to be able to argue them, then what is the point of law school? What is the point of being a lawyer if you’ve given up on the law? If the courts aren’t there to resolve disputes, then why not just beat the crap out of the other guy to win your case? You don’t need to go to law school to learn how to beat the crap out of the other guy.
Even more troubling than the court’s radical rulings, from a teacher’s perspective, is the rapid and often unprincipled manner in which the justices reach them.
“What feels different at this moment is the ambition and the velocity, how fast and aggressively it’s happening,” said Barry Friedman, a longtime N.Y.U. law professor and co-author of a book on judicial decisionmaking.
Jesse goes on to point at Bruen, a nightmarishly unworkable decision that has wreaked havoc with gun law. Of course, it follows Heller and McDonald, which redefined the Second Amendment well before any of the Trump appointees were on board. But instead of arguing that Bruen was just a terrible decision, even given its author, Clarence Thomas, the argument is that it came at the expense of the Court’s integrity. Oddly, Dobbs goes unmentioned, perhaps because of the damage its done to the Republican Party.
Most of the professors I spoke to for this article are politically liberal, as are most constitutional law professors in the country, particularly at the most prominent law schools. Still, the concerns I heard weren’t restricted to left-leaning legal scholars. Michael McConnell, a conservative former federal appeals court judge who teaches at Stanford, was fine with the ultimate result in the New York gun case, but he rejected the legal reasoning the court used to get there. “Bruen is not right under its own principles,” he told me. “It purports to be applying originalist and historicist interpretation, and it gets it wrong.”
In short, Bruen only makes sense when considered as a partisan political ruling: The modern right has long supported the elimination of gun restrictions, and the court agreed to decide the case only after it secured its current right-wing supermajority.
But is the point that Bruen was a terrible decision (it was) or that Con Law profs can no longer teach students because they feel that the Court has forfeited all institutional integrity and what’s the point?
Still, today’s students are tomorrow’s lawyers, and the task of educating them must go on, which leads to some awkward but necessary conversations that did not used to be part of the standard constitutional law curriculum.
Stanford’s Professor McConnell recalled a recent exchange in one of his classes. “I said something to the effect of, ‘It’s important to assume that the people you disagree with are speaking in good faith.’ And a student raises his hand and he asks, ‘Why? Why should we assume that people on the other side are acting in good faith?’ This was not a crazy person; this was a perfectly sober-minded, rational student. And I think the question was sincere. And I think that’s kind of shocking. I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed.”
McConnell could have explained that if we don’t assume that those who disagree with us do so in good faith, then all is lost, law is pointless and we might as well give up. In the olden days, we might argue that reasonable minds may differ, no matter how strongly we disagree. If that’s no longer accepted by prawfs teaching Con Law, then they need to find another occupation.
