The New York Times recently published a remarkable op-ed by Jesse Wegman captioned “The Crisis in Teaching Constitutional Law.” Wegman observes that Con Law professors traditionally operate under the premise that the Supreme Court is “a legitimate institution of governance,” the justices “care about getting the law right,” and they are more concerned with “upholding fundamental democratic principles” than “imposing a partisan agenda.” He then asserts that this premise “no longer holds today.”
Wegman claims that the Court, “under the pretense of practicing so-called originalism,” issues decisions that “virtually always [align] with the policy priorities of the modern Republican Party.” This, in turn, “has made it impossible for many professors to teach in the familiar way.”
He quotes one distraught Con Law professor who describes his job as “teaching students what the law isn’t.” Another was reduced to tears and felt “depleted.” She couldn’t see how “any of this makes sense” or why she should “respect it.” A third quit, saying that he “couldn’t stand up in front of the class and pretend the students should take the Court’s decisions seriously in terms of legal analysis.”
The arrogance of these professors (and Wegman) is striking. For them, the certainty that they are right and the Court is wrong apparently leaves no room for good faith debate or honest difference of opinion over the merits of its decisions and interpretive methods. Rather, the Court has simply ceased to be a legitimate institution in their eyes and its decisions no longer constitute valid sources of law.
A small group of disgruntled law professors does not make for a “crisis.”[1]Wegman interviewed fewer than 20 professors. He admits most were politically liberal, as are most Con Law professors in the country. However, their sentiments may be shared by many others in the legal academy and among political and media influencers. The dean of one prominent law school shamefully endorsed the description of Supreme Court justices as “partisan hacks.” Recent years have witnessed relentless attacks from many corners on the legitimacy of the Court and the integrity of the justices. The Court and its members are portrayed as thoroughly politicized, intellectually dishonest, unethical, and wholly at odds with American public opinion.
These caricatures are as baseless as they are extreme. Objective data refute the notion that the Court operates like a conservative monolith producing radical decisions that are out of touch with the American public:
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- The Court’s decisions rarely break down into 6-3 splits between the conservative and liberal justices. There is far more consensus than one would think from media reports. (See here)
- When there are split decisions, the six conservative justices diverge considerably more among themselves than do the three liberals. The liberals vote far more frequently as a block, particularly in politically charged cases. (See here)
- Contrary to media assertions, the current Court is less likely than its predecessors to overrule precedents. (See here)
- More often than not, the Court’s decisions in controversial cases align with public opinion. In fact, the Court is much more in tune with the American public as a whole than are the law professors. (See here and here)
- No serious ethics violations or corrupt acts have been identified regarding any justice. Tireless media efforts to find them uncovered only some ambiguities and errors regarding financial disclosure reporting. (See here and here)
The accusation that the justices are mere politicians in robes is equally unfounded. Tellingly, former Justice Stephen Breyer, a leading liberal critic of the Court (and a less partisan one), firmly rejects the notion that the justices are political actors. He does not question their integrity or good faith, only their jurisprudence.
What really accounts for the almost visceral contempt the law professors (and others like Wegman) apparently hold for the Court is a change in its dominant judicial philosophy that, while at odds with their own, is perfectly legitimate and even salutary.
Many of today’s law professors came of age in the heady era starting with the Warren Court and lasting for decades when judge-made law served as an important and reliable instrument for advancing liberal political causes. One law professor told Wegman that the professors who taught his generation “were all Warren court people” who “valorized” it. They regarded its members as “heroes who would save us all.”
The free-wheeling decisions by the justices who dominated the Court in those years consistently aligned with values the law professors share. However, many of those decisions were less than meticulous (to be charitable) when it came to their legal reasoning. They often glossed over statutory and constitutional language. For example, a 1965 decision found a constitutional right to privacy based on “penumbras, formed by emanations from” the Constitution. Another decision resorted to the text of a law in order to resolve ambiguities in its legislative history.
Spearheaded by former Justice Antonin Scalia, the Court in more recent years has shifted its focus to what the relevant law actually says and means. Far from being “pretenses,” textualism and originalism are conceptually sound interpretive methods and well within the mainstream of legal thought.[2]See here and here. In fact, they have been endorsed in concept by liberal Justices Kagan and Jackson. Of course, it’s fair to critique when and how the Court applies these methods in specific cases. Indeed, the liberal justices frequently accuse their conservative colleagues of invoking them selectively. But properly used, textualism and originalism can provide a much-needed, more objective framework for deciding cases.
No doubt a major gap does exist between what many recent Supreme Court decisions say the law is and what overwhelmingly liberal law professors would prefer the law to be. However, the blame for any resulting teaching “crisis” lies with the law professors, not the Court.
Like anyone else, law professors are certainly free to disagree with the Court’s ideological turn and its embrace of textualism and originalism. However, it is irresponsible and unprofessional to disparage the Court to law students as a rogue institution whose decisions should not be respected. This is also a grave disservice to the students, most of whom will practice in the real world.
Professors who can no longer bring themselves to teach Con Law in a traditional, straightforward way should follow the lead of one of Wegman’s interviewees and find another line of work.