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Monday, February 26, 2024

The Sense of 'Crisis' in "The Crisis in Teaching Constitutional Law"

I also have some thoughts on the op-ed Gerard discusses below. The op-ed, by Jesse Wegman, is titled "The Crisis in Teaching Constitutional Law." I think the article manages to raise some interesting issues. It is, however, mistaken in one crucial respect--in calling what it describes a "crisis," a new and sudden emergency, rather than a recurring issue in constitutional law and in the academy's relationship to the courts--and questionable in others, and it buries some of its interesting points because of that mistake. There are also posts on the subject by Orin and Will at the Volokh blog; I haven't read Will's post yet, but have read Orin's and find some points of overlap.

In writing this, it struck me at some point that I hadn't even got around to the question whether there is, you know, a "crisis in teaching constitutional law." The answer is no: it's just as easy or hard to teach constitutional law as ever. But that's a mundane practical question. The real points of interest in the piece lie elsewhere. So, for the most part, I'll leave that for a second post. 

So what is good or useful about Wegman's article? Perhaps most of all, it's useful in suggesting, not a problem arising from the Court as such, but a problem arising from generational change, and from changing views on institutions and institutionalism. On the generational front, it notes that we are dealing with at least the third generation of fallout from attachment to the Warren Court. Even if its first-generation advocates have mostly left the stage, the senior establishment still consists of people who were taught by those people, as Pam Karlan notes in the story--and folks like Karlan in turn taught most members of what is now the mid-career academic establishment in constitutional law.

The "valorization" of that Court, and of the role of judges as "heroes who would save us all," remains a powerful prevailing mythos. It is certainly evident in Wegman's own romantic-yet-embittered tone here (although his own professor was at the time leading the charge for popular constitutionalism.) Those teachers didn't just learn this faith once they entered law school. They learned it from a fairly narrow range of media that they would have been exposed to before they became law students, in an era when Anthony Lewis wasn't merely one of hundreds of people commenting on the Court, but rather its primary spokesman. Those media helped feed the mythos.

That time has long since passed. The particular stories and legends that were imbibed by my generation and those before mine are as fresh and relevant to the current generation of students as my classroom references to Kiki Dee or Conrad Bain.

In addition, as Wegman writes, there is a decline in institutionalism and institutional trust. He pins this on events like the hardball refusal to seat a replacement for Justice Ginsburg during the last year of the Obama administration. But that's both unpersuasive and insufficient. The number of institutions that now face significant distrust is far larger. The list ranges across civil society and includes institutions both public and private.

More fundamentally, the issue doesn't just involve distrust in particular institutions, for particular reasons. It involves a broader skepticism of or simple indifference towards the idea of institutions as vital but limited-purpose entities. It makes it difficult to teach about the Supreme Court--but also to be a journalism professor (an area that's been the subject of even more rapid and sustained change, and a more vertiginous decline in public trust, than anything in constitutional law), a medical school professor, and so on. And that distrust is either caused or exacerbated by things like the loss in assumptions about the good faith of one's interlocutors noted in the piece by Michael McConnell, who continues, "I do think that some of the underlying assumptions of how a civil society operates can no longer be assumed." It's in this sense, and not in any sense tied more directly and causally to the current Court, that it makes a difference if people no longer believe that, in Wegman's words, "the Supreme Court is a legitimate institution of governance." People can disdain the current Court and still believe in the larger premise that the Court is important and legitimate as an institution; I suspect that's true for most constitutional law professors, histrionics aside. The problem is that the premise itself holds no interest, no conjuring power, for a growing number of people.   

Wegman connects this point to a quote from Mark Graber, who says, "We're witnessing a transformation in the New Deal consensus" across both left and right. I'm not sure these two things are exactly the same. But--without straying too far into Moyn or Deneen territory--it does seem fairly arguable that teaching constitutional law, in the form in which it has been handed down to us since the postwar era (with hugely important disruptions along the way), or having faith in the Court, among other institutions, depends on a set of assumptions that are consistent with postwar liberalism: its values, its proceduralism, and its reliance on a host of presumptively trusted and valued public and private institutions. Remove faith in some of these things, and the whole edifice becomes unsteady.

"Faith" does seem like the right word here, incidentally. For those who are keen on the "liberalism as religion" argument, or who like to quote the closing lines of Roberto Unger's classic Critical Legal Studies book, the quote from Prof. Melissa Murray in the story's closing lines will stand out: "You're not just ministering to [law students], you're also trying to restore your own faith....This is a place for institutionalists. Deep down they want to believe." She is surely right that law schools are places for institutionalists--at least so far as faculty are concerned. The possibility that our students no longer "want to believe" in that institutionalist project--and that others, of different generations, share both that lack of faith and that lack of desire for faith--is not something she confronts here. Nor does Wegman's story address it. But we might want to. 

These all strike me as interesting points. What is not so interesting is the framework for the story in which they can be found. That framework is that there is a thing called "constitutional law," that it is both relatively stable and closely linked to the Supreme Court and happens, somewhat ironically, to resemble the Court's Burger- and Rehnquist-era efforts to turn the Warren Court's effusions into a more routinized, formalized test-based jurisprudence whose formalization makes things look less like "politics by other means"--and that all of this has been blown apart in a flash, making it impossible to "figure out how any of this makes sense" and thus to teach it or respect it. 

The latter point falls under the "not new" category. As long as we're referencing the era of the great Kiki Dee, take a look at Isidore Silver's article The Warren Court Critics: Where Are They Now That We Need Them?, published in the same year as Dee's greatest triumph. It provides a useful rundown of some of the standard plaints of leading Warren Court critics, many of which find echoes in Wegman's article. Or try Skelly Wright's description of Alexander Bickel and other critics' verdict on that Court's decisions: "over-interventionist in purpose, sloppy in reasoning, and mistaken in result." This is not the first time law professors have confronted a host of new decisions and asked: "How do I teach this? What does it even mean? In what sense is it even constitutional law as I recognize it?"

Nor, to quote Mark Tushnet and Timothy Lynch's account of the Harvard Law Review Forewords, is this the first time that critics of shoddy craft or unprincipled work on the Court have warned that such decisions would place the Court "in jeopardy of acting without legitimacy or moral authority." Tushnet and Lynch note that "these notions appear recurrently in the legal process Forewords," before going on to note that those scholars' "hegemony [began] to crack when its adherents [saw] that their theory [had] become less relevant to the real world." Legal Process had a resurgence in popularity after Eskridge and Frickey published the famous Hart & Sacks materials and helped revive interest in them. Perhaps what we are seeing today is a "crisis" for both the generation of law professors who came to law school when you could actually buy a hardbound version of Hart & Sacks and the generation that saw it to publication. 

The former point--that there is a problem for constitutional law teachers because the stable framework has vanished--I'll take up in a separate post. 

Posted by Paul Horwitz on February 26, 2024 at 11:14 PM in Paul Horwitz | Permalink


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