The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Last week, Pantheon published my new book, "The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind." The volume examines the intersection of two distinctively American institutions: the Supreme Court and the public school. In this first of five items that I will post this week, I begin by explaining how my book challenges the received wisdom among legal academics about the Supreme Court's role in American society. Unlike many law professors today, I claim that the Supreme Court has demonstrated an underappreciated capacity for shaping the nation—a dynamic that comes into sharp focus when examining constitutional law through the prism of public schools.
To claim that the Supreme Court has meaningfully advanced the causes of constitutional liberty and constitutional equality in public schools would once have been wholly unremarkable. Such a claim would simply apply to the discrete field of education law what constitutional scholars assumed was accurate as a general proposition. During an earlier era, legal academics frequently asserted—without marshaling any real evidence—that the Court had transformed the nation on a wide array of topics by extending constitutional protection to disfavored groups and causes.
More recently, however, several distinguished scholars have challenged that assessment, contending that the Court was hardly the mighty institution that older professors maintained as an article of faith. Upon examination, these revisionist scholars insist, the Court's salient decisions almost invariably ratified (rather than resisted) public opinion, and should be viewed as the reflection of national consensus or the anticipation of an emerging national consensus. This revisionist band of scholars observed that the Court's decisions invalidating measures often did not challenge the legislative landscape across the country, as the prior generation had believed, but instead typically tackled practices found in a handful of states—which they labeled "outliers." While this revisionism might have begun as a relatively small intellectual movement, its views have now become dominant within legal academia, and gained purchase in popular circles as well.
But scrutinizing the broad jurisprudence involving students' constitutional rights complicates this revisionist school's unduly frail conception of the judicial capacity for shaping American society. Indeed, if constitutional professors from earlier times were wrong to believe that the institution could achieve almost anything, today's revisionist legal scholars are incorrect to suggest that it can accomplish virtually nothing.
Consider some of the Court's many momentous interventions in this area that offer meaningful complications to the prevailing conception. In some instances, the available polling data and other contemporaneous indicators reveal that the Court's opinions vindicating those interests ran counter to the preferences of national majorities. This dynamic occurred when the Court upheld students' free speech rights in the 1960s and afforded students due process rights before they could be suspended or expelled during the 1970s.
Relatedly, in other instances, the Court's decisions invalidated practices found throughout the country, not merely those concentrated in isolated pockets. This dynamic transpired when the Court rejected statutes that prohibited teaching in languages other than English during the 1920s and requirements to salute the American flag in the 1940s. Thus, far from imposing the consensus values of the American people and invalidating outliers, it often seems more accurate to view the Court's decisions vindicating students' constitutional rights as overcoming popular sentiment.
Even if the Court strikes down practices found in only a small number of states, moreover, it is severely mistaken to construe those judicial invalidations as representing insignificant acts in shaping our constitutional order. Thus, for example, when the Court invalidated Oregon's measure requiring all students to attend public school in the 1920s, or when it struck down Kentucky's requirement that classrooms display the Ten Commandments during the 1980s, or when it nullified Texas's measure excluding unauthorized immigrants from attending public school in that same decade, those statutes were the only ones of their kind in the nation. Yet contemporaneous evidence in all three instances suggests that the Court's actions extinguished those flickering statutory sparks before they could become a genuine blaze, as—if left unchecked—other states would have sought to enact similar policies, potentially causing substantial harm to the nation's constitutional values.
Two of the Supreme Court's most prominent interventions in history—its invalidation of racially segregated schools and its invalidation of teacher-led prayers—also succeed in complicating the revisionists' general conception. Contrary to those accounts, Brown v. Board of Education cannot convincingly be construed primarily as either the ratification of an emerging national consensus on racial equality or the invalidation of outlier legislation.
Instead, the best available evidence indicates that racial attitudes—even in the supposedly enlightened North—were a good deal more ambivalent and conflicted than revisionist scholars typically allow. In addition, while some revisionists correctly concede that the Court's opinions banning teacher-led prayers in public schools encountered major opposition during the 1960s, they then quickly proceed to alternate ground, noting that those decisions were routinely flouted, most often in the South. Yet fixating on the Court's failure to achieve universal and immediate adherence to those decisions has succeeded in obscuring the extent to which they earned widespread adherence immediately, and nearly universal implementation over time.
In order to avoid misunderstanding, allow me to emphasize that I in no way seek to restore the older conception of an almighty Supreme Court. To the contrary, revisionists made a valuable contribution by critiquing and dislodging that flawed conception of the Court as colossus.
But the revisionist effort has yielded an overcorrection in the opposite direction. Whereas scholars previously erred by portraying the judiciary as omnipotent, revisionists today err by depicting it as impotent. A clear-eyed view demonstrates that the Supreme Court is neither a Leviathan striding the earth nor a Lilliputian standing in place. Instead, upon close inspection, it seems most accurate to contend that the institution has taken several significant steps on the path toward fully recognizing students' constitutional rights.