When I read the reactions of today’s academics to the current Supreme Court, I am often struck by how differently people talk about the proper role of the Supreme Court today compared to 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 we talked about the Supreme Court back then.
I realize that this approach is impressionistic. I’m going to talk about the prevailing sentiment that I encountered in a law school, Harvard Law School, at one time, in the mid-1990s. Surely there were others who had different experiences, especially in different places. And I can’t wait to hear about those experiences! But I thought it might still be interesting to convey the experience I had.
First, some context. When I was in law school, from 1994 to 1997, the focus of Harvard Public Law School was still largely on the Warren Court. I do not mean to say that there was an exclusive focus on the period from 1953 to 1969. Rather, I simply mean that major cases and major doctrinal turning points in many areas of law came from or were rooted in that period. still very present.
Looking back, part of that dynamic reflected the expertise of the faculty. A typical middle-aged law professor in 1995 would have attended law school during the Warren Court. That Court probably had an external influence on their worldview. But it was also just a question of doctrine. A lot changed in the 1960s, and making sense of the law in the 1990s often meant having some insight into what the Supreme Court did in that frenetic period of the 1960s.
The common attitude I remember was one of great enthusiasm for the Supreme Court’s creative legislative output. “What we are laying out is a Constitution,” the argument ran, quoting Chief Justice Marshall McCulloch: it is “destined to last for centuries to come and, consequently, to adapt to various crises in human affairs.” The Supreme Court has been at its best in crafting creative new rules to meet the needs of our modern society. The precedents in the books reflected the old world, not the new. It was therefore exciting and entirely commendable that the Court replaced the old rules with better ones that reflected more modern values.
The central hero of this narrative, at least in most tales, was Judge William Brennan. Justice Brennan was presented as a brilliant mind on the Warren Court for his extraordinary ability to get five votes for new directions. With Brennan on the field, especially in the 1960s, everything was on the table. You could get a lot of needed changes and you could get them quickly. This was pure good, it was thought. Brennan’s ability to get the law changed ensured that the law could change for the better.
What if you were in favor of stare decisis, or what if you thought the role of the Supreme Court in general shouldn’t be to try to improve the law? The prevailing opinion was that these objections were wooden and narrow-minded. Any person of any sophistication would realize that law is a decision-making process; the law is so flexible that it can mean anything. So if you thought the Supreme Court should simply “follow precedent,” rather than overturn it and start over in new and exciting directions, you were missing the indeterminacy and delightfully open-ended texture of the law. Such naïve views, with their false sense of certainty, would be welcome at a Federalist Society chapter meeting. But such views were generally not supported in the classroom.
The idea that the Federalist Society is associated with legal determination may seem strange today. But I remember it as a significant thought effort at the time. Today, the Federalist Society is thought to be largely about originality. But let us remember the Federalist Society’s affirmation of its principles: “It is founded on the principles that the State exists to preserve liberty, that the separation of governmental powers is central to our Constitution, and that it is definitely the jurisdiction and duty of the judiciary to say what the law is, not what it should be.” In the 1990s, that italicized idea had real meaning: Saying that judges should follow the law and not engage in creative exercises in new regulation was a dissenting view from academia as a whole. It was a hug of a widely held view rejected as naive and narrow-minded.
My feeling is that times have changed. But I thought it might be interesting to remember those old ideas, from three decades ago, to help think about these changes.