The Volokh Conspiracy

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Remembering the Proper Role of the Supreme Court, As Taught at Harvard in the 1990s

A thought on the old days.


When I read reactions to the current Supreme Court from academics today, I'm often struck by the different way that the Supreme Court's proper role is spoken of today than when I was in law school from 1994 to 1997.  I thought it might be interesting, at least to some readers, to share more about how the Supreme Court was spoken of back then.

I realize this approach is impressionistic.  I'm going to discuss the prevailing sentiment as I encountered at one law school, Harvard Law School, at one period, in the mid-1990s.  There were surely others who had different experiences, especially at different places.  And I look forward to hearing about those experiences!  But I thought it still might be interesting to relay the experience I had.

First, some context.  When I was in law school, from 1994-97, the public law focus of the Harvard Law faculty was still largely about looking back at the Warren Court.  I don't mean that that there was exclusive focus on the period from 1953 to 1969. Rather, I just mean that the main cases and major doctrinal turns in many areas of law were from or were rooted in that period,  The Warren Court was still very much a presence.

Looking back on it, part of that dynamic reflected the faculty's experience. A typical middle-aged law professor in 1995 would have been in law school during the Warren Court.  That Court probably had an outsized influence on their worldview.   But it was also just a matter of doctrine.  A lot changed in the 1960s, and making sense of law in the 1990s often meant having a view of what the Supreme Court did in that busy 1960s period.

The common attitude I remember was one of great enthusiasm for creative Supreme Court lawmaking. "It is a Constitution we are expounding," the argument ran, citing Chief Justice Marshall in McCulloch: it is "intended to endure for ages to come, and consequently, to be adapted to the various crises of human affairs." The Supreme Court was at its best in devising creative new rules to meet the needs of our modern society. Precedents on the books reflected the old world, not the new. So it was exciting, and entirely commendable, when the Court would replace old rules with better ones that reflected more modern values.

The central hero of this narrative, at least in most tellings, was Justice William Brennan.  Justice Brennan was presented as a brilliant mastermind of the Warren Court for his uncanny ability to  get five votes for new directions.  With Brennan on the Court, especially in the 1960s, everything was on the table.  You could get lots of needed change and, and you could get it quickly.  This was an unalloyed good, the thinking ran.  Brennan's ability to get the law changed ensured that the law could change for the better.

What if you happened to favor stare decisis, or you if thought that the role of the Supreme Court should not generally be to try to make the law better?  The prevailing view was that these objections were wooden and narrow-minded. Any person of expected sophistication would realize that law is policy making; law is so flexible that it can mean anything.  So if you thought the Supreme Court should just "follow precedents," rather than overturn them and start fresh in new and exciting directions, you were missing the indeterminacy and delightfully open texture of law.   Such naive viewpoints, with their false sense of certainty, would be welcome at a Federalist Society chapter meeting.  But such views weren't generally advocated in the classroom.

The notion that the Federalist Society would be associated with legal determinacy may seem odd today. But I recall it as significant strain of thinking at the time.  Today, the Federalist Society is though to be largely about originalism.  But remember the Federalist Society's statement of its own principles: "It is founded on the principles that the state exists to preserve freedom, that the separation of governmental powers is central to our Constitution, and that it is emphatically the province and duty of the judiciary to say what the law is, not what it should be." Back in the 1990s, that idea in italics had real meaning: Saying that judges should follow the law and not engage in creative exercises of new rulemaking was a dissenting view from the academy as a whole.  It was an embrace of a view widely rejected as naive and small-minded.

My sense is that times have changed.  But I thought it might be interesting to recall that old set of views, from three decades ago, to help think through those changes.