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Monday, February 26, 2024

The Supreme Court Never Was What It Was

Today's NYT article on the crisis in constitutional law teaching is a classic example of the "back in the good old days" fallacy. Back in the good old days, the Supreme Court rendered principled decisions in constitutional cases. The Justices were not making political judgments. They were not imposing their own policy views. They were careful and thoughtful. Constitutional law was an internally consistent set of rules and principle driven by logic and reasoned debate.

When was this golden age? I have no idea. Was it when Learned Hand called the Justices the "9 fools in Washington?" Was it when Willam Howard Taft was Solicitor General and called them "a bunch of mummies?" I could go on and on. The common law process and Article V amendments can give us a more coherent framework over time, but in any given period it's a Jekyll and Hyde situation.

Take the Section 3 case. The way I've been discussing Trump v. Anderson with my students is to say that the Court will probably rule for Trump in some fashion. Why is that? What are the alternative rationales? It's easy for them to see that politics plays an important role in that case. Then you can feed that back into older decisions when the politics are less familiar now (like Marbury).

It's a great time to teach constitutional law. Or at least as great as any other time.


Posted by Gerard Magliocca on February 26, 2024 at 08:29 AM | Permalink


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