When venting poses as teaching

This spring, I am teaching a constitutional law course. As a class, we have and will read many Supreme Court cases, including a number of significant opinions from the last four years on religious liberty, affirmative action, and abortion.

According to a recent piece in the New York Times, I should be teaching these decisions wearing sackcloth and ashes. The column recounts how many constitutional law professors now struggle with teaching about the Supreme Court due to the decisions it has made over the past three years overturning Roe v. Wade, cementing Second Amendment rights, and demanding truly equal treatment under the law.

The column tries to show these professors as objects of pity and valiant critics of a judiciary gone off the rails. What it really does is expose progressive legal culture as thin-skinned, entitled, and hyper-partisan.

First, these con law professors peg the court as shills for the Republican Party acting under the guise of a faux method of legal interpretation called originalism. The author pinpoints the Warren Court of the 1950s and 1960s as the benchmark, the gold standard by which to condemn the current slate of justices.

This is nonsense. The court certainly has reached conclusions different from what it would have reached if walking in lockstep with the GOP. By an 8-1 vote, the justices rejected a plea from former President Donald Trump to block the transmission of White House records about the Jan. 6 riots to a House investigative committee (all three of Trump’s nominees voted against his claim). With the support of Chief Justice John Roberts and Justice Brett Kavanaugh, the court upheld a lower court decision saying Alabama likely violated §2 of the Voting Rights Act and must redraw its congressional districts. This term, the court seems likely to strike down or at least significantly undercut Florida and Texas laws regulating social media in the name of countering their alleged liberal bias.

Moreover, the originalist approach to jurisprudence the court majority now takes is far from the “pretense” the article claims it to be. Instead, the approach recognizes that, for law to rule, judges must ascertain some objective meaning in texts, not import their own subjective preferences. Originalism seeks to provide tools that steer the judge toward greater objectivity, examining the law’s text, its context historically, and its place within pertinent legal traditions to understand the law on its own terms.

The real travesty came in how the court has interpreted law before its originalist turn, with the much-lauded Warren Court among the worst on this front. Consider the court’s interpretation of the Eighth Amendment, which bans all forms of “cruel and unusual punishment.” In 1957, the Warren Court appealed to what it called “the evolving standards of decency that mark the progress of a maturing society.” This standard proved incapable of establishing clear, consistent markers for how society supposedly “evolved,” “progressed,” and thereby “matured.” It became a thinly veiled means for justices to reach their preferred outcomes.

Or take abortion, begun with the court in Roe v. Wade building off a right to privacy not found in the Constitution. Roe was so poorly reasoned that Planned Parenthood v. Casey reworked its basis and reasoning in significant ways, only claiming to affirm Roe’s “essential holding.” Casey’s own “undue burden” standard for assessing abortion regulation also proved to be the slippery standard-in-name-only that Justice Antonin Scalia warned it would be.

Even the Warren Court’s best moment, Brown v. Board of Education, rested on shaky, ill-conceived grounds—as was recognized by constitutional scholars at the time. Though correct in its outcome—ending legal segregation—it appealed to the psychological effects of those policies on school children rather than using the solid ground of principled commitment to legal equality.

Simply put, the court majority today can make a much more logical, principled, and methodical defense of its decisions than most of its counterparts over the past century.

Second, it is comical that the constitutional law professors mentioned in the column express so much sorrow and angst at having to teach new decisions with which they fundamentally disagree. It betrays a mind that assumes both a progressive view of American history and a pampered status for themselves. They act as if judicial history must only move in a left-wing direction, at least on any substantial matters. Moreover, they must be pitied for having to teach these deviations from this view of historical development. They speak of it as a form of suffering that they must endure. Do left-leaning constitutional law professors really live in such a cocooned world? Do they truly think this posture makes them look like victims and not spoiled academics?

Good teaching demands exposing students to distinct viewpoints. It involves fairly, sympathetically articulating the strengths and weaknesses of these different perspectives, whether they align with the teacher’s understanding or not. Only by such an approach will students learn to think for themselves. Only by that form of self-government will we cultivate citizens, not parrots.

Along these lines, I teach many Supreme Court cases with which I deeply disagree. Some of them are old; some of them quite new. Yet I suffer no existential crisis nor demand the least sympathy. I find the exercise of teaching bad cases a good challenge as a scholar and as a teacher, to be perceptive to these cases merits, however minor, and able to guide students to thoughtfully engage with them.

The con law professors lamenting the current court need to stop hyperventilating. That doesn’t mean they have to agree with the court’s current trajectory. But it does mean they need to relearn, or just learn, what it means to teach, not vent—and to instruct, not to indoctrinate.