Was Constitutional Law Teaching Ever Not in Crisis? (Guest post by Patrick J. Sobkowski)
(N.B.: The following essay was authored by Patrick J. Sobkowski)
Was Constitutional Law Teaching Ever Not in Crisis?
In February of 2024, Jesse Wegman of the New York Times published an op-ed that documented a perceived “crisis” in teaching constitutional law. Wegman provides a plethora of quotes from left-liberal and progressive constitutional law professors expressing dismay at the current state of the Supreme Court. For one professor, “teaching constitutional law today is an enterprise in teaching students what law isn’t…” Another “literally burst into tears” when they were writing their syllabus. These quotes are instructive in the sense that they allude to the incoherence of the current Court’s decisions and the difficulty that it presents to professors. In short, these professors expressed exasperation with the current Court’s turn to originalism and its endorsement of the conservative political agenda. They take issue with the Roberts Court’s conservative judicial activism.
The Supreme Court—rightly or wrongly—has gained a monopoly on constitutional interpretation. Much of what we know today as constitutional law is the result of a sweeping interpretation of one of the document’s provisions by the Court. Of course, precedent and other calculations influence the justices’ decision to take a case or not, decide the constitutional issue or not, or overrule a precedent or not. But the important point is that these considerations only matter as much as the Court wants them to.
None of this is new. The Supreme Court has long claimed the power to “say what the law is” with limited regard for what the other branches of the government say or do. These calculations have precipitated some of the most heroic moments in American history. In Brown v. Board of Education, the court famously overruled the doctrine of “separate but equal” that it had articulated in Plessy v. Ferguson. The result in Brown was only possible with a consequential change in leadership and background negotiation. Throughout the 1960s, the Warren Court repeatedly overruled precedent as it interpreted the Constitution to afford broad protections for civil liberties and expand the power of the federal government. Criticizing the Roberts Court for overruling precedent to reach its favored results is not a new development.
Dissatisfaction among liberal and progressive academics is understandable. The Court is the most conservative it has been in a century. It has overturned or curtailed landmark precedents that have long been viewed as progressive victories, reproductive rights and affirmative action perhaps most prominent among them. On the other hand, the Court has announced “new” interpretations of the Constitution. It has interpreted the Second Amendment to protect gun ownership against government regulation. In a line of cases, the Court has limited the power of government agencies to regulate the economy. It has also interpreted the First Amendment as a shield against anti-discrimination laws.
This is all true. And no doubt, these cases are losses for liberals and progressives. The question is: why has the Roberts Court taken this course of action? To answer that question, it is necessary to recognize a couple historical facts.
First, the Supreme Court has never been apolitical. The Court has repeatedly interpreted the Constitution to give grace to dominant political regimes. Robert Dahl famously argued that the Court is best viewed as linked to the “political” branches. For example, in the early 20th century, the Court interpreted the commerce clause narrowly, thereby constraining Congress’s power to regulate the rapidly growing economy. The Court struck down Congress’s attempts to ban child labor and enforce antitrust statutes, among other things. This trend continued through 1937, as the Court repeatedly struck down key aspects of Franklin D. Roosevelt’s New Deal. But the Court famously changed course in 1937 and began upholding Roosevelt’s programs. The “switch in time” ended the so-called Lochner Era, when an activist Supreme Court wielded judicial review as a sword against economic regulation. To be sure, scholars disagree about whether or how much influence FDR’s “court packing” plan had on the Court’s change. But the point is that something caused the change. The Court's expansive interpretation of the commerce clause reached its zenith when the Warren Court relied on the clause to uphold the Civil Rights Act of 1964 in Heart of Atlanta Motel v. US. The Court’s broad interpretation of the commerce clause makes sense when one considers the New Deal and Great Society coalitions that dominated American politics from 1932 to 1968.
Second, the Warren Court shoulders a lot of blame for the Roberts Court. Under Earl Warren’s leadership, members of the Court embraced judicial supremacy and took it upon themselves to refashion the Constitution to meet contemporary needs. William Brennan, the “liberal champion” of the Warren Court, believed that the Constitution needed to be interpreted to accommodate the social demands of the time. To be sure, I agree with the outcomes of most of the Warren Court’s key cases. The criminal procedure revolution, granting the federal government regulatory leeway, and racial progress are desirable results. William O. Douglas, one of the most liberal justices in history, famously argued that the Bill of Rights created “penumbras” to justify the Court’s enshrinement of a right to birth control. Douglas also argued that trees should be able to sue the federal government if they are at risk of being “despoiled.” Abe Fortas routinely wrote opinions that reached his desired result, and then would order his law clerks to “decorate it” with legal citations. This is not to express an opinion on the validity of Douglas’s argument or Fortas’s methodology. Rather, it is to show the ways in which members of the Warren Court were willing to mold the text of the Constitution to suit their values.
What Brennan, Douglas, and other legal liberals did not recognize (or simply ignored) is that judicial activism knows no party. Put differently, judicial activism can be used just as effectively to achieve conservative results as it can for liberal ones. Moreover, conservatives opposed the Warren Court from the beginning. The John Birch Society famously commissioned “Impeach Earl Warren” signs in response to Brown. William F. Buckley published a piece in the National Review arguing that “the south must prevail” in the struggle for civil rights. As time passed, conservatives struggled to find an intellectual identity to reify their opposition to the Court. The problem for conservatives was that they were up against an established “support structure” of legal liberalism. The flow of former New Deal lawyers to the bench and academy meant that the burgeoning conservative legal movement would fight an uphill battle.
But conservatives became wise enough to confront legal liberals on their own turf. Richard Nixon won the presidency on “law and order” and appointing “strict constructionists” to the Supreme Court. Whether he was successful in his endeavor has long been contested. But the important takeaway is that, beginning as early as 1968, conservatives knew they had to fight fire with fire. With the election of Ronald Reagan in 1980 and his appointment of conservative elites to the courts and Department of Justice, particularly Antonin Scalia and Edwin Meese, the tide began to turn. Scalia’s advocacy of originalism and textualism changed the game. Originalism provided a pathway to conservative results. But perhaps more importantly, the language of originalism lent an aura of neutrality and democratic legitimacy to these results. Scalia’s originalism armed conservatives with two powerful weapons: a methodology to roll back past liberal precedents; and the vocabulary to advance the conservative political agenda.
The Roberts Court is the direct descendent of the Warren Court. Originalism allows the Roberts Court to clothe its decisions in the language of the law, just as the Warren Court did with appeals to “liberty,” “equal protection,” and “due process.” But the Roberts Court is part and parcel with the development of constitutional law throughout history. The meaning of the Constitution changes. What is unique about some members of the Roberts Court is that they grew up within legal liberalism. They disagreed with the Warren Court’s interpretations of the Constitution, and they are now in a position to undo much of what the Warren Court did. The only difference for progressives is that the shoe is now on the other foot.
The common denominator in this equation is judicial activism itself. As the above history shows, the Roberts Court is not an anomaly. The Supreme Court has long been inextricably linked to politics, and we have seen activist courts before. The disagreement, I suspect, is with the outcomes. But if we like certain outcomes and dislike others, perhaps we should look to the mechanisms that produce them.
Put differently, maybe the problem is that the Supreme Court is simply too powerful regardless of its composition. Liberals and progressives largely declined to criticize the Warren Court. To borrow from one of Wegman’s interviewees, liberals “valorized” the Warren Court. And how could they not? The Court was a constitutional rubber stamp for the Great Society’s political agenda.
Let’s return to Wegman’s essay. With this history in mind, how can liberal and progressive professors teach constitutional law?
The answer is to show students that (1) the Supreme Court is not separate or even much different from Congress or the president in terms of its members’ desire to use the Constitution to make policy; and (2) placing faith in the courts as somehow separate from politics and expecting them to act as if they are not, is a recipe for disappointment.
None of this is to say that teaching constitutional law is easy. The most difficult aspect of teaching the subject is the doctrinal incoherence of the decisions. Eric Segall has written extensively on this difficulty. But we can remedy the problem once we understand that the legal doctrine is tied not only to political regimes, but also to the justices’ values and political beliefs. This helps to explain the seemingly nonsensical shifts in doctrine throughout the course of history. Why was the Court willing to recognize a constitutional right to birth control in 1965? Because during the 1960s, the United States was in the middle of the “sexual revolution” and 72% of the public believed that birth control should be accessible as recently as 1960. Context often matters as much as the “black letter” law, at least if we want students to understand why cases are decided as they are. The best thing constitutional law professors can do, in short, is to help students make these connections by teaching them to think critically with careful attention to political and historical context.
But if liberals and progressives want to push back on the Roberts Court in a principled way, they need to reckon with the legacy of the Warren Court. Perhaps this comes with a revival of Felix Frankfurter’s advocacy of judicial restraint. Perhaps it is realizing that scholars like Alexander Bickel were correct to criticize judicial review as undemocratic. Maybe they ought to heed the warnings of Eric Segall, Chris Sprigman, and others, who have called for curbing the power of the Court through jurisdiction stripping and greater judicial deference.
Progressive and liberal scholars have done yeomen’s work in exposing the hypocrisy and ahistorical nature of originalism. To be sure, this is important work. But what progressives have failed to do is offer up a unifying alternative to originalism. Maybe this is not possible. But if it isn’t possible, perhaps that’s the important takeaway. The alternative is to recognize the Supreme Court and its justices for what they have been and will always be: members of political coalitions whose primary goal is to advance their own policy preferences. Our job as professors is to teach our students to see this fact through careful attention to historical and political context.