Teaching Constitutional Law in a Crisis of Judicial Legitimacy

The real crisis seems to be in academia, not at the Court

Today's New York Times has a piece by Jesse Wegman on "The Crisis in Teaching Constitutional Law" that reflects the kinds of sentiments I've heard at conferences, lunch tables, and especially on social media—that it is hard to teach constitutional law today because the Supreme Court is doing such lawless stuff.

"Teaching constitutional law today is an enterprise in teaching students what law isn't," Leah Litman, a professor at the University of Michigan law school, told me.

Rebecca Brown, at the University of Southern California, has been teaching constitutional law for 35 years. "While I was working on my syllabus for this course, I literally burst into tears," she told me. "I couldn't figure out how any of this makes sense. Why do we respect it? Why do we do any of it? I'm feeling very depleted by having to teach it."

At least she's still trying. Larry Kramer, a widely respected legal scholar and historian who was my constitutional law professor at N.Y.U. 20 years ago, called it quits in 2008, on the heels of the Supreme Court's divisive decision in District of Columbia v. Heller, which struck down decades of precedent to declare for the first time that the Second Amendment protects an individual right to bear arms. Many observers felt that Heller's majority opinion, by Justice Antonin Scalia, intentionally warped history to reach a preordained result.

Professor Kramer was the dean of Stanford law school at the time, and after the Heller ruling, he told me recently, "I couldn't stand up in front of the class and pretend the students should take the court seriously in terms of legal analysis." First-year law students, he felt, "should be taught by someone who still believed in what the court did."

And so on. I have heard many others voice these concerns, and I worry that they demonstrate a lack of perspective that will dis-serve our students.

Last fall I presented at a conference on "Teaching in a Time of Change and Conflict" on some of these themes. I've now posted on SSRN my presentation: Teaching Constitutional Law in a Crisis of Judicial Legitimacy. I offer a quite different take. From the introduction:

The topic of our symposium is "Teaching in a Time of Change and Conflict" and my specialty is constitutional law, so as you can imagine I have some things to say. With recent developments in the Supreme Court, I regularly hear other professors, including colleagues and friends, ask: How can we teach constitutional law in such a crisis of judicial legitimacy? How can we still teach students that courts are a place to seek justice? . . . These sentiments reflect a real challenge for teaching constitutional law today. But I fear they demonstrate a lack of perspective. The things that today's law professors say about today's Supreme Court are things that others could have said, and sometimes did say, about the Supreme Court for many decades. The real crisis in teaching constitutional law today is not in the Supreme Court, but in legal academia: the question is whether we can maintain the perspective necessary to teach effectively about the Court and the Constitution.

From the argument:

There is a perception that there is something different, something more challenging, about teaching constitutional law today because the Supreme Court has been doing so many things, so quickly, that are so hard to justify.

This perception is wrong. You have always been teaching law in a time of a crisis of judicial legitimacy. The Supreme Court has never been the same thing as the Constitution. It has never been infallible at interpreting the Constitution. It has long been engaging in awe-inspiring power grabs. Dobbs, Bruen, and Bush v. Gore have nothing on Cooper v. Aaron, Miranda v. Arizona, Baker v. Carr and Reynolds v. Sims, Gideon v. Wainwright, The School Prayer Cases, The School Busing Cases, Roe v. Wade and Planned Parenthood v. Casey, Boumediene v. Bush, and Obergefell v. Hodges. If you were asking yourself just two years ago how we can still teach our students about constitutional law . . . then you have not been teaching them very well until now.

In sum, the Court has always been making questionable calls in high-profile cases, likely for a mix of political reasons and genuine differences of opinion about the nature of the Constitution. What has really changed is not that the Court is newly imperial, or newly lawless, or newly political. What has changed is that many more folks inside the Ivory Tower have noticed, and no longer see their values and ways of thinking represented as often by the Court. That reflects a change in what the Court thinks the law is, to be sure. But it does not reflect a change in whether the Court is doing law.

. . . .

I am not naïve enough to think that the solution to the legitimacy crisis will arrive anytime soon, and indeed I can't guarantee that anybody who needs to hear these admonitions will listen to them. But at least listen when I say this: There are lots of people, and even lots of law students, outside the bubble. And they can hear you.

And from the conclusion, with a great debt to C.S. Lewis:

Now let me tell you why we should not succumb to cynicism about constitutional law.

In 1939, C.S. Lewis preached a sermon called "Learning in War-Time." "A University is a society for the pursuit of learning," he began. But, "this seems to be an odd thing to do during a great war. What is the use of beginning a task which we have so little chance of finishing? Or, even if we ourselves should happen not to be interrupted by death or military service, why should we—indeed how can we—continue to take an interest in these placid occupations when the lives of our friends and the liberties of Europe are in the balance? Is it not like fiddling while Rome burns?"

Lewis's ultimate answer was that the war had not truly altered the human condition: "All the animal life in us, all schemes of happiness that centered in this world, were always doomed to a final frustration. In ordinary times only a wise man can realize it. Now the stupidest of us knows. We see unmistakably the sort of universe in which we have always been living, and must come to terms with it." If learning was worth doing in normal times, it was no less worthy during a time of war.

So, too, if constitutional law was worth learning and arguing about in 1964 or 1984, it is worth learning and arguing about in 2024. Once we realize that somebody has always been holding the short end of the Supreme Court, somebody has always been losing, somebody has always been having important decisions ripped away from them on contestable legal grounds, the task of the professor has not fundamentally changed.

It is not my place to tell you, let alone my students, how to feel about the Supreme Court, or whether to try to decimate it as an institution. But if we cannot understand it, if we cannot teach it, we have no business in this business.

For more, including a discussion of Scott Alexander's review of Martin Gurri's Revolt of the Public, a discussion of the methodological Turing test, and other concrete pedagogical suggestions, you can read the whole thing, only eight pages.