Further Reflections on Three Decades Teaching Constitutional Law as a Legal Realist

I recently wrote an article about teaching constitutional law as a legal realist for a symposium on legal education at the University of Pittsburgh. My main conclusions were the following:

1) Students need to learn the black letter “law” which is itself a challenging enterprise; (2) the  incoherence  of  the  Court’s  constitutional  law  cases  helps  students  improve  their  critical  thinking;  (3) if  a  student  is  going  to  practice  constitutional  law,  she needs to be able to manipulate formalism, history, text, and legal rules even if those tools do not drive results on the ground; and (4) I disclose my general beliefs about the Court to students on the first day of class so they have an idea what the course is going to be like.

This post supplements that article with a few more thoughts and suggestions. If you believe doctrine dictates results at the Supreme Court, this post might not be helpful to you (but you really should consider alternate descriptive accounts).

One of the hardest questions for professors who take public positions outside of rarely read law review aticles and scholarly books is whether to disclose their biases to their students--the problem raised by number 4 above.  In my case, many of my students know my views before they walk into the room. I have decided it is best to disclose my positions where relevant and strongly invite debate and discussion. There’s always the danger of students filtering my teaching through those openly articulated biases and thinking I’m not being fair. It is a close call but I think that’s a feature, not a bug. 

The alternative is to hold strong positions that are widely publicized and pretend those positions don’t affect one’s teaching. As a hard-core legal realist, I believe that would be a bigger problem. But it is not an easy question, especially in our highly polarized political environment.

Another hard issue is how to present material that is warranted by pedagogy but is highly offensive to traditionally disadvantaged groups or, well, anyone. The use of the n-word when it appears in cases is one example, and Justice Bradley's awful, sexist, and expressly religious concurring opinion in Bradwell v. The State is another. In an 1872 case upholding Illinois's ban on women practicing law, he wrote:

Man is, or should be, woman's protector and defender. The natural and proper timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The Constitution of the family organization, which is founded in the divine ordinance as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of womanhood. The harmony, not to say identity, of interest and views which belong, or should belong, to the family institution is repugnant to the idea of a woman adopting a distinct and independent career from that of her husband.

There are, sadly, too many examples of this problem. I do not teach any cases with the n-word included in the opinion, but my understanding is that torts professors and others do have this problem. My intuition is that the n-word is sui generis and should be avoided but the rest is probably fair game with sufficient explanation, but I am really not sure. Eugene Volokh and I debated this issue at length in this podcast.

Another difficult question is how to present cases containing highly misleading, dishonest, or just inconsistent and incoherent doctrine. To deal with this problem, I tell the students that anytime a litigator argues that a previous case is close enough to the present one that her client should prevail, the judge has only three options:

1) Yes it is; you win.

2) You are right, but we are reversing that case, so you lose.

3) That case was different (distinguishable).

There are no other logical options. The first two choices are usually consistent with rule of law values, but the third is valid only if the distinctions between the cases are legally valid. They often are not, especially at the Supreme Court, and that’s where we can help students with their critical thinking skills. As I outlined in my symposium piece, the doctrinal chaos that permeates constitutional law is an ideal vehicle to teach students skepticism and realism about what judges actually do when deciding legal questions in open spaces.

After decades of reading, writing, and teaching constitutional law, I am more convinced than ever that the personal is the political is the constitutional. Conservative judges mostly vote conservatively, liberal judges mostly vote liberally, and moderates judge…well, vote moderately.

In other words, when teaching constitutional law we should not hide from our students what Dean Erwin Chemerinsky wrote in the Harvard Law Review Foreword 35 years ago at a time when abortion was a constitutional right, affirmative action permissible, and no federal court in history had ruled that the Second Amendment provides people an affirmative constitutional right to own guns separate from militia service. The central thesis of that wonderful article is simply that judges in constitutional law cases have no choice but to balance conflicting values because neutrality and objectivity are both impossible and undesirable. Text, history, and, at the Supreme Court, precedent, simply do not and cannot provide adequate explanatory power for what judges have consistently done throughout our country's entire history.

Values inevitably matter.

Or, as Justice Souter said at a Harvard commencement shortly after he retired:

The Constitution is a pantheon of values, and a lot of hard cases are hard because the Constitution gives no simple rule of decision for the cases in which one of the values is truly at odds with another.  Not even its most uncompromising and unconditional language can resolve every potential tension of one provision with another, tension the Constitution’s Framers left to be resolved another day; and another day after that, for our cases can give no answers that fit all conflicts, and no resolutions immune to rethinking when the significance of old facts may have changed in the changing world.  These are reasons enough to show how egregiously it misses the point to think of judges in constitutional cases as just sitting there reading constitutional phrases fairly and looking at reported facts objectively to produce their judgments.  

Anyone teaching constitutional law needs to at least wrestle with Chemerinsky's and Souter's legal realist accounts. But how to do that, well, that’s a difficult question that has many different answers. I’ve tried to suggest several approaches in my article but there are many different ways to deal with the textual, historical, and precedential madness that we call constitutional law.

I truly and sincerely hope ignoring or minimizing the incoherence problem is not one of them.