Teaching Con Law

Mark Joseph Stern writes about a very serious issue, providing some valuable insight into a matter of some concern for lawyers now and of the future. What will they be taught about the Supreme Court, both as an institution and as to the decisions it’s issues since Justice Anthony Kennedy resigned.

Even law professors who maintained confidence that the Supreme Court would rise above politics are reconsidering their view after this term. “I have generally, up until now, resisted the cynicism of the ‘new legal realists’ that the Supreme Court isn’t a court, it’s just a policy council,” said Steve Sanders, a professor at Maurer School of Law. “I want my students to believe that legal argumentation, precedent, facts, and doctrine matter.” In the aftermath of this term, though, “it’s becoming increasingly difficult to deny that major constitutional decisions are almost purely about politics.”

Stern writes that “plenty, ” a word that conveys a sense of many without making much of a commitment, try to refrain from introducing their beliefs into the classroom “no matter how they lean politically.” Of course, how they lean politically in the legal academy isn’t much of a mystery given that “plenty,” as in 90% or more, are progressive.

First, these professors took pains to teach each case down the middle before offering their own views, and even then, they always allow for pushback through class discussion. Second, many offer their own views only in elective classes for 2L’s and 3L’s, playing it by the book when teaching 1L’s (who don’t get to pick their classes). Bridges told me she assumes students in her electives are interested in her personal views—and if they aren’t, they can drop the course.

That these profs, some portion of Stern’s “plenty” take pains is likely true. A good teacher would do that, although it’s unclear how successful taking pains will prove. Then again, do students in the second and third year of law school have no option to delve deeper into Supreme Court law than to learn one prawf’s personal views or “drop the course,” meaning do without? And who is this Professor Bridges?

Khiara Bridges remembers the exact moment she lost faith in the Supreme Court. At first, at the start of Donald Trump’s presidency, Bridges—a professor who now teaches at UC–Berkeley School of Law—held out hope that the court might be “this great protector of individual civil liberties right when we desperately needed it to be.” Then came 2018. That June, the justices issued Trump v. Hawaii, which upheld the president’s entry ban for citizens of eight countries, six of them Muslim-majority. Suddenly, Bridges told me, she realized, “The court is not going to save us. It is going to let Trump do whatever he wants to do. And it’s going to help him get away with it.”

Four years later, the justices completely shattered whatever remaining optimism Bridges could muster about the court by overruling Roe v. Wade in Dobbs v. Jackson Women’s Health Organization. When the decision came down on June 24, she got a migraine for the first time in a decade. The image of the court as a majestic guardian of liberty was, she concluded, “a complete lie.” And it wasn’t just about her own personal feelings, either: Now she had to teach her students about the work of an institution that made her sick to contemplate.

Bridges is hardly alone in the Supreme Court making her “sick to contemplate” to the point where she got a “migraine for the first time in a decade,” Stern offers other examples, but there are “plenty.” And to be fair, while Bridges’ reaction is cast in purely emotional terms, it’s not as if she lacks a damn good reason to believe the Court had become a tool of conservative politics.

The problem, it’s worth emphasizing, is not that the Supreme Court is issuing decisions with which left-leaning professors disagree. It’s that the court seems to be reaching many of these conclusions in defiance of centuries of standards, rejecting precedent and moderation in favor of aggressive, partisan-tinged motivated reasoning. Plenty of progressive professors have long viewed the court with skepticism, and many professors, right- and left-leaning, have criticized the reasoning behind certain opinions for decades. But it’s only in recent years—with the manipulation of the justice selection process combined with clear, results-oriented cynicism in decisions—that the problem has seemed so acute that they feel it affects their ability to teach constitutional law.

This is both true and false. Would they suffer migraines if a progressive Supreme Court issued unprincipled decisions that held health care is a right, or that the First Amendment did not protect “hate speech” or that gay and transgender people were protected from discrimination under the word “sex”?

This past term has seen a Supreme Court issue some groundbreaking opinions that stood on highly shaky foundations, and glossed over extremely important doctrinal concerns that stood in the way of very partisan outcomes, to somehow manage to achieve the outcomes long desires by a certain cohort with an an extremely conservative agenda. Was it mere kismet, or was this conservative court bent on “correcting” decades of law with which conservatives disagreed? And with which progressive now disagreed?

Simple minds look at this gambit as a matter of good and evil, right and wrong, failing to grasp the critical importance of legal stability and social reliance, on the one hand, and sound logic untainted by emotion on the other. This was true when the Warren Court went on its wild ride creating rights that have become the hallmark of criminal law, even if one has to squint really hard between the lines to find them. This is true today.

The Supreme Court has had turbulent and alarming periods in its history before. But since the 1950s, the legal academy has told a particular story about American law, one with clear heroes and villains. The Supreme Court was the hero, vindicating the Constitution’s grand guarantees of liberty and equality for all, abolishing segregation while guarding against authoritarianism. It was the great bastion of freedom, the protector of democracy, the champion of civil liberties, the pure and high-minded manifestation of our nation’s noblest values. Now, it is reshaping into an antagonist of many of those values, facilitating democratic backsliding while rolling back long-settled rights.

I can’t, or perhaps won’t, challenge Stern’s characterization of what the Supreme Court did back then because I agree with him, that the Court was “the great bastion of freedom, the protector of democracy, the champion of civil liberties.” Whether this is because I’m right or because when I went to law school, this was the prevailing view of the Court, this was what I was taught to believe, is unclear. What con law, and their colleagues in related legal niches, teach their students matters. If they are taught that the Supreme Court is a cynical cesspool of partisan hackery, what will they think when, like me, they’re forty years out?