Today’s New York Times published an article by Jesse Wegman on “The Crisis in Teaching Constitutional Law” that reflects the kinds of sentiments I’ve heard at conferences, at luncheons, and especially on social media: that it’s hard to teach constitutional law Today. why is the Supreme Court doing such illegal things.
“Teaching constitutional law today means teaching students what the law is not,” Leah Litman, a professor at the University of Michigan Law School, told me.
Rebecca Brown, at the University of Southern California, has taught constitutional law for 35 years. “When I was working on the syllabus for this course, I literally burst into tears,” she told me. “I couldn’t understand how any of this makes sense. Why do we respect this? Why do we do this? I feel very impoverished having to teach this.”
At least he’s still trying. Larry Kramer, a widely respected legal scholar and historian who was my constitutional law professor at New York University 20 years ago, called it quits in 2008, in the wake of the Supreme Court’s controversial decision in District of Columbia v. Heller, who erased decades of precedent to declare for the first time that the Second Amendment protects an individual’s right to bear arms. Many observers felt that the Heller majority opinion, delivered by Justice Antonin Scalia, intentionally distorted history to achieve a preordained outcome.
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 that students had to take the court seriously in terms of legal analysis.” First-year law students, he believed, “should be taught by someone who still believed in what the court did.”
And so on. I have heard many others express these concerns, and I fear they demonstrate a lack of perspective that will not benefit our students.
Last fall I presented some of these themes at a conference on “Teaching in a Time of Change and Conflict.” I have now published my presentation on SSRN: Teaching constitutional law in a crisis of judicial legitimacy. I offer a quite different view. From the introduction:
The theme 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 a few things to say. With recent developments at the Supreme Court, I regularly hear other professors, including colleagues and friends, ask: How to teach constitutional law in such a crisis of judicial legitimacy? How can we still teach students that the courts are a place to seek justice? . . . These sentiments reflect a real challenge to the teaching of constitutional law today. But I fear they demonstrate a lack of perspective. The things today’s law professors say about the Supreme Court today are things that others might have said, and sometimes have said, about the Supreme Court for many decades. The real crisis in constitutional law teaching today is not in the Supreme Court, but in academia: the question is whether we can maintain the perspective necessary to effectively teach 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 done so many things, so quickly, that are so hard to justify.
This perception is wrong. You have Always taught law in a time of crisis of judicial legitimacy. The Supreme Court has Never it was the same thing as the Constitution. It has Never he was infallible in interpreting the Constitution. She has long been engaged in impressive power grabs. Dobbs, The bridgeAND Bush vs. Gore have nothing on you Cooper vs. Aaron, Miranda v. Arizona, Baker vs. Carr AND Reynolds vs. Sims, Gideon vs. Wainwright, Cases of school prayer, School bus cases, Roe v. Wade AND Planned Parenthood v. Casey, Boumediene v. BushAND Obergefell vs. Hodges. If just two years ago you wondered how we can still teach constitutional law to our students? . . then you haven’t taught them very well until now.
In summary, the Court has consistently made questionable claims 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 has become imperial again, or now lawless, or now political. What has changed is that many more people inside the Ivory Tower have noticed and no longer see their values and ways of thinking represented so often by the Court. This certainly reflects a change in what the Court deems the law to be. But that does not reflect a change in whether the Court is reading.
. . . .
I am not naive enough to think that the solution to the legitimacy crisis will come soon, and indeed I cannot guarantee that anyone who needs to hear these warnings will heed them. But at least listen when I say this: There are a lot of people, and a lot of law students, outside the bubble. And they can hear you.
And from the conclusion, with a great debt to CS Lewis:
Now let me tell you why we should not succumb to cynicism about constitutional law.
In 1939, C.S. Lewis preached a sermon titled “Learning in Wartime.” “A university is a society for the pursuit of learning,” he began. But “this seems to be a strange thing to do during a major war. What good is it to begin a task that we have so little chance of completing? Or, even if we ourselves were not interrupted by death or military service, why would we – Indeed, how can we continue to be interested in these placid pursuits when the lives of our friends and the freedom of Europe are at stake? Isn’t it like fiddling while Rome burns?”
Lewis’s final response was that the war had not truly altered the human condition: “All animal life in us, all plans for happiness centered on this world, have always been doomed to one final frustration. In normal times only one man wise can realize Now even the stupidest of us knows this. We see unmistakably the kind of universe we have always lived in and must come to terms with it. If it was worth learning in normal times, it was no less so in times of war.
Likewise, if constitutional law was worth learning and discussing in 1964 or 1984, it will be worth learning and discussing in 2024. Once we realize that someone has Always served as short member of the Supreme Court, some did Always lost, someone did Always who have had important decisions taken away from them for contestable legal reasons, the professor’s task has not changed radically.
It is not my job to tell you, much less tell my students, what I think of the Supreme Court, or whether to try to decimate it as an institution. But if we can’t understand itif we can’t teach itwe have no business in this business.
To learn more, including a discussion of Scott Alexander’s review of Martin Gurri’s Revolt of the Audience, a discussion of Turing’s methodological test, and other concrete pedagogical suggestions, you can read the whole thing, just eight pages.