Who Will Teach The Teachers?

There is a crisis of faith in Constitutional Law, and as Jesse Wegman notes, it’s changed the way law professors look at it and teach it.

“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.

Litman is about as die-hard a progressive prawf as they come, and her quote, the first proffered by Jesse in support of his contention, speaks volumes. As a trench lawyer, I’ve taken issue with many Supreme Court decisions over the years, from the dreaded Whren to Heien, and every decision that loves drug-sniffing puppies more than facts. And don’t get me started on the Reasonably Scared Cop Rule of Graham v. Connor.

Notably, none of these cases were decided since Trump appointed three judges to the Court. Or to put it another way, the Supreme Court has been making what I consider to be bad law for generations. It did not just start with Trump’s three appointees.

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.”

If you can’t prepare a syllabus for Con Law without bursting into tears, should you be teaching it? Having suffered the indignities of decisions I disagree with and, well, hate, over the past few decades, there are two overarching things to remember. First, that I’m not on the Supreme Court and don’t get a vote, no matter how well I think of my own opinions. Like it or not, there is a Supreme Court and it gets to make decisions that control the state of constitutional law. My job is to know how to work within the system and make the best of it for my clients, no matter how much I disagree with SCOTUS. The only way I, or any lawyer, can do so is to know the law, understand how the system works and learn how to use it to my clients’ advantage. In other words, I don’t get to just scream “you suck” at the Court and go home, leaving my client standing there holding the bag.

Second is that every lawyer knows that you win some and lose some, and the notion that we deserve to win because we’re the good guys is childish. There have been a spate of extremely troubling and controversial decisions in the past few years, and it’s understandable that much of the angst and hype has given rise to a pervasive belief by the general public that the current court majority is made of partisan hacks willing to sacrifice institutional reason and integrity for the sake of checking of boxes on its reactionary agenda.

But bad as we may sincerely, even correctly, believe some of these decisions to be, they are still the decisions of the Supreme Court of the United States. If law students aren’t taught them, taught to understand them and to be able to argue them, then what is the point of law school? What is the point of being a lawyer if you’ve given up on the law? If the courts aren’t there to resolve disputes, then why not just beat the crap out of the other guy to win your case? You don’t need to go to law school to learn how to beat the crap out of the other guy.

Even more troubling than the court’s radical rulings, from a teacher’s perspective, is the rapid and often unprincipled manner in which the justices reach them.

“What feels different at this moment is the ambition and the velocity, how fast and aggressively it’s happening,” said Barry Friedman, a longtime N.Y.U. law professor and co-author of a book on judicial decisionmaking.

Jesse goes on to point at Bruen, a nightmarishly unworkable decision that has wreaked havoc with gun law. Of course, it follows Heller and McDonald, which redefined the Second Amendment well before any of the Trump appointees were on board. But instead of arguing that Bruen was just a terrible decision, even given its author, Clarence Thomas, the argument is that it came at the expense of the Court’s integrity. Oddly, Dobbs goes unmentioned, perhaps because of the damage it’s done to the Republican Party.

Most of the professors I spoke to for this article are politically liberal, as are most constitutional law professors in the country, particularly at the most prominent law schools. Still, the concerns I heard weren’t restricted to left-leaning legal scholars. Michael McConnell, a conservative former federal appeals court judge who teaches at Stanford, was fine with the ultimate result in the New York gun case, but he rejected the legal reasoning the court used to get there. “Bruen is not right under its own principles,” he told me. “It purports to be applying originalist and historicist interpretation, and it gets it wrong.”

In short, Bruen only makes sense when considered as a partisan political ruling: The modern right has long supported the elimination of gun restrictions, and the court agreed to decide the case only after it secured its current right-wing supermajority.

But is the point that Bruen was a terrible decision (it was) or that Con Law profs can no longer teach students because they feel that the Court has forfeited all institutional integrity and what’s the point?

Still, today’s students are tomorrow’s lawyers, and the task of educating them must go on, which leads to some awkward but necessary conversations that did not used to be part of the standard constitutional law curriculum.

Stanford’s Professor McConnell recalled a recent exchange in one of his classes. “I said something to the effect of, ‘It’s important to assume that the people you disagree with are speaking in good faith.’ And a student raises his hand and he asks, ‘Why? Why should we assume that people on the other side are acting in good faith?’ This was not a crazy person; this was a perfectly sober-minded, rational student. And I think the question was sincere. And I think that’s kind of shocking. I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed.”

McConnell could have explained that if we don’t assume that those who disagree with us do so in good faith, then all is lost, law is pointless and we might as well give up. In the olden days, we might argue that reasonable minds may differ, no matter how strongly we disagree. If that’s no longer accepted by prawfs teaching Con Law, then they need to find another occupation.

19 thoughts on “Who Will Teach The Teachers?

  1. Kevin P. Neal

    The response to the student should have been “Do you want me to assume your question about assuming good faith is being asked in good faith?”

  2. Sgt. Schultz

    I assume you, like me (pretty sure you wrote about this before), were school in the “living Constitution” interpretive theory, which gave rise to the Warren Court pulling heretofore unknown rights out of William O. Douglas’ butt. It was a great approach as long as we liked the Court’s holdings. But it wasn’t partisan when it favored our outcomes.

    Of course, we never believed that the Court would flip on us and start making terrible rulings again.

  3. Mike V.

    “Jesse goes on to point at Bruen, a nightmarishly unworkable decision that has wreaked havoc with gun law.”

    It is odd that only a dozen or so states find it so unworkable. Bruen has only wreaked havoc on states that believe law abiding citizens get to exercise their rights “by the leave of their betters” in the form of a government functionary.

    1. Hal

      FWIW, I’m a fervent supporter of the 2A/ RKBA and wholeheartedly agree w/ Scott on this point.

      In Bruen (and perhaps Dobbs, though I’m less familiar w/ the details of that case), this court has created a new standard of review. Ironic, as in the decision, Justice Thomas wrote that that RKBA (for self defense) was not “a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantee” and then essentially created just such a rule. Further, this standard is nonsensical, requiring an analagous law from the time of the founders, when there was little or no jurisprudence regarding this issue is simply asinine.

      JMO, but what the court should have done in Bruen, was rule that the 2A describes a fundamental right and, therefor, the appropriate standard of review is “strict scrutiny” and, as the NYC law did not meet this standard, returned the case to the lower court to adjudicate.

      Actually, they should have done that w/ Heller, in which case we wouldn’t have the abomination that is Bruen.

      1. Pedantic Grammar Police

        I suspect that the reason they didn’t do that is because strict scrutiny would destroy the vast majority of gun laws. Bruen is bad law, but it is an improvement on the previous bad law, and although I would like to see governments forced to adhere to the plain language of the 2nd amendment, I can understand judges being reluctant to authorize car-mounted rocket launchers.

        1. Lee Keller King

          If the Court was trying to avoid destroying the majority of guns laws in Bruen (and in Heller), then they did a poor job. While I’m okay with the result, I have wondered by they didn’t stick with strict scrutiny, which would have, IMHO, given us the same result.

          I am also troubled by the states (I’m looking at you New York and California) that seem to be thumbing their collective noses at the Supreme Court by immediately passing laws that cannot withstand scrutiny under Bruen.

        2. Hal

          Bruen will also “destroy the vast majority of gun laws”, though the rationale is strained and will almost certainly result in a number of contentious, and likely confusing, decisions as courts search for analogous rulings from the time of the founders and struggle to determine how close the analogy must be to apply/ have legal merit.

          If SCOTUS ruled that strict scrutiny was the appropriate standard of review, this would both be consistent, something generally considered desirable in law, and comprehensible. Laws that couldn’t be shown to serve a compelling government need, or that infringed on the RKBA to a degree beyond that necessary meet this need, would/ should be considered unconstitutional.

          W/ rgd to “car mounted rocket launchers”, I’m assuming that you’re deliberately engaging in hyperbole/ reductio ad absurdum. Miller (1939) established that the criteria for determining whether a given weapon was protected under the 2A/ RKBA were that it be “suitable for military purpose” and “in common use”. Rocket launchers, vehicle mounted or not, wouldn’t meet the requirement for being “in common use”.

          If one looks at the TO&E for an infantry company, one would find rocket launchers/ anti-tank weapons, grenades/ grenade launchers, Claymore mines and other anti personnel/ anti vehicle mines, mortars, heavy machine guns/ LMG/ SAWs, rifles and handguns. All but the latter two were restricted by the National Firearms Act (1934). Over the past sev’l decades prohibitionists have tried to ban the ownership of rifles and handguns “suitable for military purpose” and “in common use”. Strict scrutiny would stop this. OTOH, under Bruen, cannon and other crew served weapons might be protected as these were legally owned at the time of the founders. Arguably, so would rocket launchers as crude versions existed in the 18th century.

        3. Morgan O.

          “I can understand judges being reluctant to authorize car-mounted rocket launchers.”
          That would be unsafe on its face. Cars are completely the wrong shape for mounted rocket launchers. Pickup trucks, or better yet lawn tractors, on the other hand…

      2. Mike V.

        I’m pretty sure Heller did say strict scrutiny was the appropriate standard. And I’m pretty sure the states bemoaning Bruen and the Federal Circuits they are in have ignored that and continued to do what they wish. Partly because it was leaked that Justice Roberts didn’t want to hear anymore gun cases.

        I’ve hoped something like Bruen was coming if there was ever a solid conservative majority and still lower courts and states continue to express faux outrage and try to ignore it. I now expect a case in the not too far future where the Court says the only permit scheme that passes muster Shall Issue with fingerprint background checks.

        1. SHG Post author

          Two of the things I find least desirable here are people going off topic and non-lawyers discussing their view of law. If the urge strikes you to do this again, take it to reddit. I hope I’ve made myself clear.

  4. Erik A

    “There have been a spate of extremely troubling and controversial decisions in the past few years, ”

    I wonder if this opinion results more from recency effect error than anything else? Has there ever been a point in recent times where we were not annoyed by a series of SCOTUS decisions? The decibel level of the anti-conservative media has never been higher, particularly regarding SCOTUS and their decisions. They work tirelessly to undermine both their credibility and integrity. Sadly, it seems to be working.

  5. BlueThing

    The switch in time that saved nine is perhaps the most nakedly political decision ever made by the court, yet I’d doubt that the profs cited in the article object to it and argue that it is not valid.

    If the profs can’t teach the cases as decided, they need to retire.

    If they break down in tears because the court ruled in a way they disagree with, they need to seek professional psychological help. Their employer hopefully will pay for their care and leave of absence as they try to rebuild their fragile psyches.

  6. Pedantic Grammar Police

    Some say that Bruen is a bad decision because it restores too many of the 2nd amendment rights that were taken away by judges who reinterpreted the plain language of the 2nd amendment to mean something other than what it says. Others say that it doesn’t go far enough, and that a correct decision would have strictly enforced the unambiguous mandate “the right of the people to keep and bear Arms, shall not be infringed.”

    Decisions that bring us closer to the plain language of the constitution do not undermine the legitimacy of the court. Not even when they reverse previous decisions that mangle the meanings of words to reach a conclusion loved by newspaper article writers and law professors,

  7. Elpey P.

    “McConnell could have explained that if we don’t assume that those who disagree with us do so in good faith, then all is lost, law is pointless and we might as well give up.”

    Ironically the impassioned ideologues take it in the opposite direction, and use the presumption of bad faith as justification to claim victory purely on righteousness, no argument required, and crush the opposition by any means necessary.

    Good faith can afford to take even bad faith in good faith. Bad faith will take both good and bad faith in bad faith. Unless it’s an incidental observation, the accusation is a self-incriminating projection with an ugly history.

  8. phv3773

    IANAL, but….

    A problem with Bruen is that it fails in the appearance of novelty. There is no 18th century tradition for drones or monoclonal antibodies. You say it doesn’t apply there? Fine. How to you deal with novelty that arises in an established technology? Smokeless powder was novel in 1884.

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