Constitutional Fun and Despair: A Week in the Life of a Law Prof
By Eric Segall
Last week was an interesting month. I lived through many of the things that make my job so rewarding and so frustrating all at the same time.
Monday: I have this little podcast called Supreme Myths which I started during Covid-19 because I was feeling so detached from my friends and colleagues outside Atlanta. My guest last week was New York Times reporter Emily Bazelon, whom I have long admired for her sharp and entertaining views on the Supreme Court. She did not disappoint. We talked about law and politics, legal realism, mass incarceration, and at the end the rumors of Justice Barrett's $2 million book deal in which book, according to the internet, she is going to talk about how judges should leave their feelings behind when deciding cases. Sigh. Emily made the clever observation that Justice Gorsuch, who also wrote a book shortly after being appointed to the Court, did not make anywhere near that much money, and she wondered how he was feeling about that.
Speaking of feelings and judging, Emily and I also discussed a fascinating 2018 article she wrote about the Court lurching right (pre-Barrett), in which Emily quoted the great political scientist Robert Dahl who said that “much of the legitimacy of the Court’s decisions rests upon the fiction that it is not a political institution but exclusively a legal one [and yet] from time to time its members decide cases where legal criteria are not in any realistic sense adequate to the task.” He wrote that in 1957 before the Warren Court, except for Brown, even got off the ground. Just so. Emily was great.
Tuesday: I had the privilege of being the guest speaker at New York Law School's faculty lunch series. The title of my talk was "Originalism 2021 Style: Desirable but Impossible." Readers of this blog know my view that originalism with super-strong deference is my preferred solution to the Court's almost two-century pattern of overreaching but the Justices will never give up their power, and originalism without such deference is absurd.
I had a great time but wanted to mention one of the questions I was asked. Someone remarked on Justice Scalia's alleged originalism in criminal procedure cases and how that was actually a good thing and shouldn’t my strong critique of Scalia take that into account. Sigh. That question is part of the great Scalian myth that still deeply affects our constitutional world. The reality is that Scalia voted against criminal defendants most of the time and, according to an astute data-driven article by Professor Lawrence Rosenthal, Scalia voted originalist in these kinds of cases less than 20% of the time,. That means, and I'm not great at math, that he voted non-originalist 80% of the time in criminal procedure cases. That seems consistent with my critique.
Tuesday night I had to virtually teach the anti-voting rights nightmare that is Shelby County v. Holder to about 70 of my students. As I said on Twitter, every time I re-read this case I want to puke. I won't go into all that here other than to note how the case absolutely supports my thesis that the Court is not a court.
The five conservatives infamously adopted a principle of equal state sovereignty that: 1) is nowhere in the text; 2) is completely inconsistent with the history of the Reconstruction Amendments; 3) which the Court emphatically rejected in South Carolina v. Katzenbach; and 4) which the Court, in a prior Voting Rights Act case, overturned implicitly by the use of ellipses. I presented the receipts for all that previously on this blog. Suffice it to say, my students were appalled, and I really do not know any way of making them (or myself) feel anything but awful about the whole sordid enterprise.
Wednesday: I was flattered and excited to appear on an originalism panel for the American Academy of Appellate Lawyers with Princeton University Political Scientist, and co-creator of New Originalism, Keith Whittington, University of Miami Professor Caroline Mala Corbin, and Quinn Emanuel Partner Kathleen Sullivan (who really should be on the Supreme Court but that's a long story) as moderator. We had pre-recorded our remarks and then did a live Q & A session, which was kind of weird especially as we could not see the audience at all -- life in the Covid-19 era I guess.
The highlights were Caroline's sincerity and smarts telling everyone that, really originalism is not for women, but if you are a female appellate lawyer you have to pretend it is important anyway. I observed that this is the kind of misery women have to live through every day -- pretending something is important to men knowing the "it" is either really silly, dangerous, or both. Caroline also said that, if one wants to adopt originalism, and still not feel like one is living in 1789 or 1868, one can adopt the New Originalism, which made Keith's head turn, because if we discard original expected applications and replace them with broad, imprecise principles, then one can be an originalist AND a living constitutionalist all at the same time. Yes. Constitutional Construction, all aboard!
Wednesday night I was invited to appear on a brand new technology, uh oh, called Clubhouse, to talk about Court reform, or more accurately, why Court reform will not happen during our collective lifetimes. Somehow Professor Neysun Mahboubi of the University of Pennsylvania collected Dahlia Lithwick, Emily Bazelon (twice in one week for me!), and Professors Tom Ginsberg, Rick Hills, and Marin Levy to discuss how the 143 -erson commission (okay 36) will likely end up not recommending anything especially given, as Mike observed a while back, its charge is to make an appraisal, not recommendations. Double sigh.
Nevertheless, the evening was fun even if the topic was depressing as hell (which is the binary that defines my career). One side note. As I tweeted out last week, when I told my high tech 12 year old that I was going to use some brand new technology to talk about my work with really smart people, she responded, "Clubhouse? What a geeky name for an App. Is Mickey going to be there?" For those of you reading this who are too young to remember ... oh never mind.
Thursday: I ended my 30th year teaching Federal Courts, which I have written is the hardest course in law school (as I've been told by my students for, well 30 years). I both love and hate teaching the completely incoherent standing doctrine, the much too elastic political question doctrine, the now largely invisible Bivens doctrine, the anti-textual 11th Amendment cases, the wide variety of and often inexplicable abstention doctrines, and of course the mundane sounding well-pleaded complaint rule, which often unnecessarily and unfortunately remits cases with important federal issues to the state courts.
The constitutional law of federal jurisdiction, often based on the imprecise text of Article III, is extremely difficult. Students, lawyers, and lower court judges have to wade through absurdly complex doctrinal machinations and talk the talk of rules, often ignored, and cases, often ignored or distinguished unpersuasively, all the time arriving at the same conclusion: if the Court wants to hear a the case it will, and if it does not want to hear the case, it will not. Talking the talk but not walking the walk, forgive the cliche, is a good description of all litigated constitutional law, and it is the binary that makes teaching, writing about, and talking about the Supreme Court so fun and so painful.
Last week was quite a month.