« Last Call - Northwestern University Law Review Exclusive Empirical Cycle - 2022 | Main | Shaviro, "'Moralist' Versus 'Scientist'" »

Monday, June 27, 2022

Some Supreme Court Miscellany and "Living Under an Anticanonical Legal Regime"

For various reasons, I'm inclined to avoid writing directly and on-point on the avalanche of important Supreme Court decisions. So here instead are some off-point questions and observations. Lest I be misunderstood, in a "people are starving and you're writing about a mere avalanche" way, I do not think many of these questions rise to the level of importance of the core issues addressed in these decisions. A few may actually be significant despite my best efforts, and I think a couple of points, which I naturally have placed toward the bottom of the post, raise genuinely useful questions that I hope others will take up. (Among other things, I'm recovering from surgery and more slowly than I had hoped, so I doubt I'll be the one to do it.)  

1) Isn't today's Bremerton decision, whatever else one thinks of it, good for academics? On the way to its decision, it discusses Garcetti, and emphasizes that the question whether a public employee's speech is "ordinarily within the scope of an employee's duties" should "be undertaken 'practically,' rather than with a blinkered focus on the terms of some formal and capacious written job description. To proceed otherwise would be to allow public employers to use 'excessively broad job descriptions' to subvert the Constitution's protections." Isn't that good for professors who may be engaging in speech for which the university would like to discipline them? I am more of a realist than a doctrinalist; I think any decisions on these issues will be guided more by what the Court thinks the scope of protections for academic speakers in particular contexts should be than by any prior formulae. But the language is there just the same and ready for use.  

[I'm leaving the paragraph above in. But I should note that I have been reminded by a correspondent that Garcetti did not answer the question whether and how it would apply to university professors, a question that was raised in dissent by Justice Souter and noted but left undecided by the majority. More important, the federal circuit courts--five of them so far--have refused to apply it to academic teaching and writing. I'm grateful to Prof. Jason Kilborn for writing to me on this point and for the citations--including to page 16 of Bremerton itself, where the Court notes that the case "does not raise questions of academic freedom that may or may not involve 'additional' First Amendment 'interests.'" I should add that as I write this, I realize that what I had largely in mind was writing by academics outside of the clearly academic field that a university might want to treat as writing that falls within the professor's scope of work for purposes of the chopping block. I wasn't thinking so much about statements inside the classroom or in whatever would clearly count as "academic writing." But, aside from my also realizing that it's far from clear that that kind of writing could ever be covered by Garcetti, the general point stands: that decision, which I had not reread in forever but should have before posting, does not clearly apply to professors, and so the preceding paragraph is something of a wet squib. Fabulous stuff below, though!]     

2) What will, or should, happen to con law casebooks? I am very slowly working on putting together my own constitutional law materials, so I tip my hat to published casebook editors, the best of whom do serious work in creating those books. But there are inevitably time lags, narratives that shape a casebook but become increasingly outdated, tendencies to fight the last war, overemphasis on cases and issues that engaged the editors' passions at the time but slowly faded into the general fabric--witness the growing and then shrinking space devoted to the Guantanamo cases or Bush v. Gore--and so on. Is this a Term that calls not for regularly scheduled annual supplements, but altogether new editions? (I am focusing here on the casebooks as books, without any other considerations. My views may be different if they are considered primarily as commercial operations. Although I'm sure new editions are greeted with delight by most publishers and many authors, my primary sympathies here are with students, who may not be delighted by the news that their recently purchased and incredibly expensive book has lost its resale value. That's why I'm putting together my own materials. In a better world, the average cost of materials for a casebook-centered course would approach zero dollars, and enough law professors would invest time in free materials that the great casebooks--and the great ones really are great--would at least face real incentives to reduce their price significantly.) 

Should annual supplements, at least, be different this year? Usually, they simply invite the person using the casebook to insert new case A at page X, and so on. Perhaps the editors instead should rewrite particular chapters, or offer a suggested table of contents for new chapters or sections of their casebooks, one that takes serious account of the relationship between the old cases in the casebook and the new supplemental cases that diminished or supplanted them. That's true not just of this year's blockbusters, but of other recent cases. Surely it's time for a rewrite of large chunks of the separation of powers chapters, particularly those that discuss appointments and removals and are still oriented around a narrative frame that starts with Myers and culminates in Morrison.  

At a minimum, I would suggest to published casebook editors that they include a serious introductory essay in their annual supplements assessing the state of affairs and how it affects their casebooks. They ought also to publish and distribute similar essays for those using their teachers' manuals, including new suggested syllabi. A serious "supplemental" effort this summer will involve some real work and major surgery. 

3) I mentioned casebook narratives above. Of course, they're not limited to casebooks. Narrative frames pervade how we talk about the Supreme Court and its jurisprudence. I suppose that is what supplies my own answer to the question posed by Gerard: "Is there still any reason to teach the liberty of contact cases in an introductory constitutional law course?...If Lochner is not canon and is no longer meaningful anti-canon, [because one can simply use Roe and Casey as the arguably anticanonical cases and contrast them with Dobbs], then why teach it?"

Howard offers an answer below: "Lochner is more than an unenumerated right. The case also functions as shorthand for using the Constitution to protect economic activities against state regulation. That effort continues with recent efforts (some successful) to use, for example, free speech to hamper economic regulation--hence so-called 'First Amendment Lochnerism.' Can students understand that concept and what it entails if they have not learned Lochner?" By implication, his reply to Gerard is that there are good reasons to continue to teach Lochner and to make it an important part of one's narrative in a constitutional law course.

I tend to agree with Howard, while also agreeing that Gerard's question is a useful provocation. I cannot overemphasize how much I dislike the tendency to sum up doctrine and doctrinal developments, as well as political and cultural developments, in bumper-sticker phrases such as "cancel culture" or "First Amendment Lochnerism" or "weaponization." This kind of thing is not new, certainly, but it has arguably been supercharged in recent years, by factors such as social media and social media-like thinking, the effort to pursue and promote a mix of "academic" and openly political projects across "platforms," and the emphasis on branding as a way to claim novelty or importance and thus claim a spot in a fancy law review. Cardozo wrote of metaphors that they "start[ ] as devices to liberate thought [but] end often by enslaving it." Slogans like "First Amendment Lochnerism" and many more, of whatever political orientation, are similar but mostly skip the first stage. Whatever their original authors' intentions, which may have been sincerely descriptive, they are often deployed to arrest thought, to force someone to think only in a particular way; they are not liberatory or fertile, but constrictive. To the extent that they are deployed for political purposes, that's natural. Political slogans are meant to serve a particular end, not to encourage exploration, divergence, dissent, or heterodoxy on the part of their readers and listeners. But I can't say I find this sort of thing attractive in either serious thinking and writing or academic thinking and writing. There are a lot of valuable discussions to be had about the issues or incidents that gave rise to the phrase "cancel culture," but they do not include the many arguments that focus excessively and absurdly on the phrase itself when they insist that "cancel culture" exists or does not exist. I would say the same thing of the popular bumper-sticker slogans that are colonizing constitutional law writing on the part of judges and academics alike.  

Nevertheless, Lochner, or "Lochner" as a shorthand or place-holder, is very much a part of the 20th Century American legal tradition and extends firmly into the 21st Century so far as well. Roe may officially be bad law now, and it may have been criticized, by liberals and conservatives alike, since the day it was issued. But it is not "anticanonical" in the usual sense in which that word is used. And I see no serious likelihood that it will be treated that way by mainstream American legal culture any time soon. So, if only because of the narrative that continues to exert a strong and perhaps distorting pull on our thinking about these issues, there are still good reasons to teach Lochner, even for professors who do not emphasize historical arcs or narratives in their teaching but focus instead on current doctrine.

[Let me offer a self-serving plug for a very good recent book on some of these questions. Law's Infamy: Understanding the Canon of Bad Law, edited by Austin Sarat, Lawrence Douglas, and Mary Umphrey, is good despite rather than because of my own contribution. But that chapter, "Fame, Infamy, and Canonicity in American Constitutional Law," does discuss many of these issues.]

This leads me to some additional questions. They deserve posts and discussion of their own, if someone else if not by me. In any event, building on my response to the question of Roe and Lochner and the status of the constitutional law canon, I would offer the following suggestions or questions:

A) Isn't it likely that many professors will, in a sense, teach Roe and Casey as canonical and Dobbs as anticanonical, despite the fact that the latter case is "good law" and the the former cases now are not? Are there good arguments for doing so? Whatever its consistency with many constitutional law teachers' jurisprudential and political views, is it good teaching? Or is it in tension with the role of a law teacher qua teacher?     

B) Following on this question, and in keeping with the view that a lot of American constitutional law thinking and teaching  takes place within a narrative frame, won't a good deal of American constitutional law writing and teaching for the next little while take place within the narrative of living under an anticanonical legal regime? As novel and dispiriting--or motivating and energizing--as this idea might be for many, it should hardly be shocking for legal academics in this area. But it might provoke some interesting (and some awful) writing. Reserving my views about whether it is sound or proper teaching, I'm sure it could also make for an interesting narrative frame for a basic con law course. 

4) Two final questions. First, what will be the relationship between the current Supreme Court and the lower federal courts, especially the circuit courts? It has seemed to me in recent years that at least in some areas, the relationship between the two has been one of two solitudes operating on more or less separate but antagonistic tracks, with some decisions suggesting that some appellate court panels were resisting or ignoring the Court. Despite that description, I actually think some of these instances were productive, not in the sense that they were necessarily correct or successful, but in the sense that the antagonistic dynamic, along with governmental responses to the intermediate court rulings, ended up producing some reasonable outcomes. Will this trend continue, or even increase? (And conversely, will there be instances of appellate panels overreading recent precedents and trying to push the Court farther than it wants to go?) 

Along the same lines, in the post-Brown years, there were famous instances of lower federal courts offering dubious efforts to distinguish Brown and other precedents, such as by focusing on Kenneth Clark's doll studies and concluding that they, and Brown itself, were undermined by competing social science. They are not celebrated. Will we see similar efforts now to resist some of the Court's recent opinions? Will some of them be similarly dubious in their deployment of the facts or law? How will these decisions be regarded? Quite differently, I expect.

And last, will we see one of the regularly-predicted and little-noticed revivals of state constitutional law?     

Posted by Paul Horwitz on June 27, 2022 at 03:32 PM in Paul Horwitz | Permalink


The comments to this entry are closed.