The Enduring Crisis in Teaching Constitutional Law

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Emory Law Journal

3-5-2025

The Enduring Crisis in Teaching Constitutional Law The Enduring Crisis in Teaching Constitutional Law

Patrick J. Sobkowski

Part of the Constitutional Law Commons, and the Supreme Court of the United States Commons

THE ENDURING CRISIS IN TEACHING CONSTITUTIONAL LAW

Patrick J. Sobkowski*

Constitutional law is in crisis. The 6-3 conservative majority of the Supreme Court has generally produced the desired results of the current Republican Party. This has led to calls of illegitimacy, activism, and partisanship from leftliberal and progressive scholars and politicians. In 2024, Jesse Wegman published an opinion essay in the New York Times documenting these criticisms from progressive law professors. In this essay, I argue that there is nothing unique about the current crisis. Rather, the political nature of cases is a result of “juristocracy,” which knows no party. In light of this, I provide important context and argue for more principled views on the current Supreme Court on the part of liberals and progressives. Finally, I propose several suggestions for progressives who teach constitutional law while strongly disagreeing with the results.

INTRODUCTION ................................................................................................. 49 I. THE LEGACY AND LESSONS OF THE WARREN COURT ........................... 52 II. THE CONSERVATIVE LEGAL MOVEMENT AND THE

ROBERTS COURT ................................................................................... 57 III. A PATH FORWARD FOR PROGRESSIVES AND LIBERALS......................... 60 CONCLUSION ..................................................................................................... 65

In February of 2024, Jesse Wegman of the New York Times published an op-ed that documented a perceived “crisis” in teaching constitutional law.1 Wegman provides a plethora of quotes from left-liberal and progressive constitutional law professors expressing dismay at the current state of the Supreme Court. For one professor, “[t]eaching constitutional law today is an enterprise in teaching students what law isn’t.”2 Another “literally burst into tears” when they were writing their syllabus.3 These quotes allude to the incoherence of the current Court’s decisions and the difficulty that it presents to professors who must explain them to students.

These professors expressed exasperation with the Court’s turn to originalism and its endorsement of the conservative political agenda. Put succinctly, they take issue with the current Roberts Court’s embrace of juristocracy, defined as the movement of power away from representative institutions and toward courts.4 But is the Roberts Court engaging in anything new? In this essay, I argue that it is not. In fact, the Warren Court—long lionized by liberals and progressives—shoulders much of the blame for juristocracy and the current state of the Court and constitutional law.5

Juristocracy is the transfer of an “unprecedented amount of power from representative institutions to judiciaries.”6 The practical effect of juristocracy is the transformation of typically political questions into legal or constitutional ones.7 The Warren Court embraced juristocracy to reach progressive results. School desegregation, apportionment, criminal procedure, contraceptives, and religion were all political questions, turned into constitutional ones.8 This is not to say the Court should never involve itself in political questions. But over time, the Court has become increasingly involved in constitutionalizing issues traditionally left to the political branches. The same phenomenon is observable with the Roberts Court. Firearms regulation, religion, government power, campaign finance, and voting rights need not present constitutional or legal issues.9 As Baumann and Sumrall argue, the Roberts Court’s entire Second Amendment jurisprudence is about subjecting state and federal gun regulations to strict judicial review.10

I am not the first scholar to offer thoughts on this so-called crisis.11 Professor Baude argues that the real crisis in teaching constitutional law is a lack of perspective in the legal academy.12 Baude alludes to the Warren Court and legal scholars’ disagreement with its decisions and methodology.13 He also argues that the Roberts Court’s decisions “have nothing” on some of the most heralded Warren Court precedents.14 I think this is probably right. Baude is also right when he says, “[t]he things that today’s law professors say about today’s Supreme Court are things that others could have said, and sometimes did say, about the Supreme Court for many decades.”15 In part, I will offer some elaboration on Baude’s allusions and briefly offer a path forward for left-liberal and progressive constitutional law scholars and teachers to address why the Roberts Court has embraced juristocracy.16

The Warren Court shoulders a significant amount of blame for the current state of the Supreme Court. In many ways, the Roberts Court is the direct descendant of the Warren Court. To be sure, the Warren Court gave us some of the most heroic moments in American legal history. Brown v. Board of Education cemented the Court’s legacy,17 but it was not until the early 1960s that “history’s ‘Warren Court’” came to be.18 Most of the landmark cases decided by the Court post-1962 are still (rightly) hailed as progressive victories,19 such as Gideon v. Wainwright,20 Miranda v. Arizona,21 Engle v. Vitale,22 and New York Times v. Sullivan.23 These cases are ingrained in the American political and legal consciousness. But the same cases have been subject to increasing scrutiny as the Court has changed both interpretive methodology and composition.24

It is intuitive, then, that liberals and progressives are disturbed by the political and doctrinal changes wrought by the Roberts Court. The Court is the most conservative it has been in a century. It has overturned or curtailed landmark precedents that have long been viewed as progressive victories: reproductive rights25 and affirmative action.26 On the other hand, the Court has announced “new” interpretations of the Constitution. It has interpreted the Second Amendment to protect gun ownership against government regulation.27 In a line of cases, the Court has limited the power of government agencies to regulate the economy.28 It has also interpreted the First Amendment as a shield against anti-discrimination laws.29 In reaching these novel interpretations, the

Court has overruled precedent.30 Finally, the Roberts Court has given broad authority to the president in a line of cases.31

The disagreement, I suspect, comes with the outcomes. The key question is why are we getting these outcomes? If we like certain outcomes and dislike others, perhaps we should look to the mechanisms that produce them. The actions of the Roberts Court become understandable when one considers the history of the conservative legal movement that arose in opposition to the Warren Court. Juristocracy is the mechanism that produces these shifts in policy. If we are serious about criticizing the Supreme Court—whether it is liberal or conservative—we need to focus on the disease, not just the symptoms.

There is little doubt that members of the Warren Court sought to further the cause of social justice and progress in American society. But the practical effects of those decisions are contested.32 But what were the actual effects and what do they tell us about courts in general? Moreover, how can progressives and leftliberals teach constitutional law in the 21st century, considering the first question? In this essay, I provide some possible answers to these important questions.

The Supreme Court has long claimed the sole power to interpret the Constitution. Article III vests “the judicial power” in “one Supreme Court,”33 and this has been interpreted to encompass the power of judicial review.34 Congress and the Executive Branch have conceded much ground with regard to constitutional interpretation.35 Indeed, much of what we know today as constitutional law is the result of a sweeping interpretation of one of the document’s provisions by the Court. The Warren Court made explicit that it claimed the exclusive power to interpret the Constitution.36 Of course, precedent and other calculations influence the justices’ decision to take a case or not,

decide the constitutional issue or not, or overrule a precedent. But the important point is that these considerations only matter as much as the Court wants them to.

It’s long been scholarly orthodoxy that the Court interprets the Constitution to give grace to dominant political regimes.37 Robert Dahl famously argued that the Court is best viewed as linked to the “political” branches because they decide cases in line with prevailing political opinion.38 For example, in the early 20th century, the Court interpreted the commerce clause narrowly, thereby constraining Congress’s power to regulate the rapidly growing economy.39 Among other things, the Court struck down Congress’s attempts to ban child labor and enforce antitrust statutes.40 This trend continued through 1937, as the Court repeatedly struck down key aspects of Franklin Roosevelt’s New Deal.41 But the Court famously changed course in 1937 and began upholding Roosevelt’s programs.42

At the time (and for decades after), the perception was that Roosevelt’s threat to pack the Court precipitated a change of course.43 This “switch in time”44 ended the so-called “Lochner Era” where the Court was striking down economic legislation under the Fourteenth Amendment.45 Laura Kalman has also persuasively shown that the demise of the court packing plan was not foreordained.46 But Kalman and Leuchtenburg represent the view that Roosevelt’s plan (i.e., politics) had some effect on the Court.47 This is the “externalist” view of the event.48

To be sure, scholars disagree about whether or how much influence FDR’s “court packing” plan had on the Court’s change.49 Barry Cushman has shown that the Court began its gradual shift in 1934, in Nebbia v. New York.50 The case involved a price control on milk, which the Court upheld as constitutional.51 The upshot of Cushman’s argument is that politics did not cause the “switch in time.”52 Instead, the change could be traced to “internal” legal considerations.53 Much ink has been spilled on the effects (or lack thereof) of the court packing plan on the Court. But the point is that something caused the change.54

The Court’s expansive interpretation of the commerce clause reached its zenith when the Warren Court relied on the clause to uphold the Civil Rights Act of 1964 in Heart of Atlanta Motel v. U.S.55 The Court’s broad interpretation of the commerce clause makes sense when one considers the New Deal and Great Society coalitions that dominated American politics from 1932 to 1968.56

But under Earl Warren’s leadership, members of the Court took it upon themselves to refashion the Constitution to meet contemporary needs. To be sure, this calculation precipitated some of the most heroic moments in American history. In Brown, the court famously overruled the doctrine of “separate but equal” that it had articulated in Plessy v. Ferguson.57 The result in Brown was only possible with a consequential change in leadership and background negotiation.58 Throughout the 1960s, the Warren Court repeatedly overruled precedent as it interpreted the Constitution to afford broad protections for civil liberties. Criticizing the Supreme Court for overruling precedent to reach favored results is not a new development.

William Brennan, the “liberal champion” of the Warren Court, believed that the Constitution needed to be interpreted to accommodate the social demands of the time.59 William O. Douglas, one of the most liberal justices in history, famously argued that the Bill of Rights created “penumbras” to justify the Court’s enshrinement of a right to birth control.60 Douglas also argued that trees should be able to sue the federal government if they are at risk of being “despoiled.”61 Hugo Black, an early progenitor of textualism, favored a strict reading of the Constitution’s text.62 Abe Fortas routinely wrote opinions that reached his desired result, and then would order his law clerks to “decorate it” with legal citations.63 Jack Balkin has argued, persuasively in my view, that the Warren Court used history to justify outcomes.64 This is not to express an opinion on the validity of Douglas’s and others’ arguments. Rather, it is to show the ways in which members of the Warren Court were willing to mold the text of the Constitution, as well as the meaning of history, to suit their values.

What Brennan, Douglas, and other legal liberals did not recognize−or simply ignored−is that juristocracy knows no party. It can be used just as effectively to achieve conservative results as it can for liberal ones. Moreover, conservatives opposed the Warren Court from the beginning.65 The John Birch Society famously commissioned “Impeach Earl Warren” signs in response to Brown.66 William F. Buckley published a piece in the National Review arguing that “the south must prevail” in the struggle for civil rights.67

And indeed, the fears of conservatives were realized as the Warren Court accumulated power and solidified its progressive agenda. The so-called “criminal procedure revolution” inaugurated theoretically robust constitutional

protections for criminal defendants.68 The Court incorporated the exclusionary rule against the states in Mapp v. Ohio, overruling a twelve-year-old precedent in the process.69 Perhaps most famously, the Court articulated a prophylactic rule in Miranda v. Arizona, holding that the police must inform a suspect that: (1) they have the right to remain silent; (2) anything they say can be used against them; and (3) they have a right to counsel.70

The Court’s progressivism did not go without opposition, even among leftleaning law professors.71 The backlash was prominent, of course, in politics.72 And the political pushback did not stop with the criminal procedure cases or Brown but extended to the Court’s protection of supposed communists.73 Even Hollywood seemed to question the wisdom of the Court’s criminal procedure decisions.74 But still, liberal law professors provided intellectual defenses of the Warren Court’s jurisprudence.75 John Hart Ely articulated a theoretical approach to judicial review that focused on protection of the political process.76 He argued that many of the Warren Court’s decisions could be justified under his framework, though, famously not Roe v. Wade.77 Charles Black defended Brown against criticisms. For Black, Brown was straightforward: “The fourteenth amendment commands equality, and segregation as we know it is inequality.”78

The problem for conservatives was a relative lack of organization.79 They struggled to find an intellectual identity to reify their opposition.80 An additional problem for conservatives was that they were up against the established “support structure” of legal liberalism.81 The flow of former New Deal lawyers to the bench and academy meant that the burgeoning conservative legal movement

would fight an uphill battle.82 As legal historian Laura Kalman has argued, legal scholars began turning to history to justify key Warren Court precedents from fellow liberals as well as conservatives.83 The turn to history in constitutional law marked a turning point for both legal liberals and conservatives.84 For Kalman, history provided a path forward for both conservatives and liberals85 Attempts by both sides to discern original meaning is important because it fosters dialogue between historians and lawyers from both sides of the ideological spectrum.86 But until relatively recently, the conservative legal movement lacked a theory qua theory.87

Fortunately for them, legal conservatives became wise enough to confront legal liberals on their own turf. Operating both within the legal academy and the federal government were men like Robert Bork and Raoul Berger. Bork was a professor at Yale Law School and wrote an influential article in which he argued that the “framers’ intent” should govern courts on constitutional issues.88 Berger’s classic Government by Judiciary excoriated the Warren Court for its activism in expanding protections for civil liberties.89 Berger’s methodology was unique in that it turned to history to show that the framers of the Fourteenth Amendment did not intend to incorporate the Bill of Rights against the states.90

Bork and Berger were the first serious academic progenitors of originalism.91 Still, they were subjected to criticism for their work.92 But the important takeaway is that, beginning as early as 1968, conservatives knew they had to fight fire with fire.93 Bork served in the Nixon Administration, and no doubt his legal views gained some traction.94 But with the election of Ronald Reagan in 1980 and his appointment of conservative legal elites, particularly Antonin

Scalia and Edwin Meese, to the federal courts and Department of Justice, the tide began to turn.95

Scalia’s advocacy of originalism and textualism changed the intellectual landscape for conservatives.96 While the normative underpinning of Bork and Berger’s originalism counseled judicial restraint,97 Scalia’s brand was different. He argued that original public meaning should govern, rather than “intent” as advocated by Bork and Berger.98 Scalia’s brand of originalism provided a pathway to conservative results in controversial cases. But perhaps more importantly, the language of originalism lent an aura of neutrality and democratic legitimacy to those results. Scalia’s originalism armed conservatives with two powerful weapons: an interpretive methodology to roll back past liberal precedents and the vocabulary that provided them political cover.

The Roberts Court has adopted originalism as its preferred interpretive method, though there is disagreement at the margins.99 Scholars have pointed out the shift from Scalia’s original public meaning to history and tradition.100 Originalism allows the Roberts Court to clothe its decisions in the language of the law, just as the Warren Court did with appeals to “liberty,” “equal protection,” and “due process.” But the Roberts Court is part and parcel with the development of constitutional law throughout history. The meaning of the Constitution changes as political regimes come and go and as the composition of the Supreme Court changes.101 What is unique about some members of the Roberts Court is that they grew up within legal liberalism. They disagreed— politically and methodologically—with the Warren Court’s interpretations of the Constitution, and they are now able to undo much of what the Warren Court did.102 The only difference for progressives is that the shoe is now on the other foot.

The Roberts Court has overruled or curtailed important precedents. The most controversial is probably Dobbs, but the Court has also handed victories to gun rights advocates and anti-affirmative action advocates.103 It has also broadened protections for religious practices in the public sphere.104 Most of these decisions overruling or curtailing precedent have done so in the name of originalism or “history and tradition.”105 Turning to history and tradition allows the conservative justices to appear neutral. After all, if Blackstone said something, the framers and public must have agreed with him. In constitutional interpretation then, the justices’ hands are tied. But it is not a coincidence that the outcomes of recent cases match up to the platform of the modern Republican Party. Cases concerning religious liberty, abortion, affirmative action, voting rights, the administrative state, and presidential power have all fit nicely within the policy preferences of the GOP.106

Of course, the outcomes have not been uniform. The Court’s Indian law jurisprudence has been favorable to Native Americans, if closely divided.107 It also held that employers may not discriminate on the basis of sexual orientation under Title VII of the Civil Rights Act of 1964, rather than the Equal Protection Clause.108 These liberal “wins” notwithstanding, the Court has consistently delivered the “conservative” result in ideological cases, and done so divided along ideological lines.109

Thus far, the Roberts Court has embraced juristocracy just as the Warren Court did. Both courts decided cases in ways that, more or less, validated or greenlit the policy preferences of dominant political coalitions.110 The biggest

difference between them is the ideological valence. As mentioned above, the current Court is quite conservative. To borrow Mark Tushnet’s cynical framing: policies that benefit or strengthen the Republican Party are presumptively constitutional; policies that benefit or strengthen the Democratic Party are presumptively unconstitutional.111 If this is the case, then the deck is stacked against the Democratic Party unless there is a sudden change in the composition of the Court, or other forms of court reform become a reality. Perhaps the Court really is no different than the political branches. If this is the case, how can liberals and progressives teach constitutional law in a time of “crisis”?

To start, the question I always ask my students is: Why? Why did the Court interpret the Constitution this way? Why did the Court decide Heller relatively quickly after John Ashcroft drafted a letter to the NRA advocating a robust interpretation of the Second Amendment?112 When I teach the Civil Rights Act and Heart of Atlanta, I show that Congress deliberately relied on the commerce clause, rather than the Fourteenth Amendment, so they did not have to ask the Court to overrule precedent.113 When we focus on “why,” it allows students to see that the Court is never operating outside its historical context.

In response to my blog post, Professor Dorf argues that there is an asymmetry between liberal and conservative judicial activism.114 Conservatives argue that they are simply construing the text of the Constitution, and nothing more, but then fill vague text with right-wing ideas.115 By contrast, liberals have always

acknowledged that terms like “due process of law” and “equal protection” are subject to some subjectivity.116 This point is well taken, and I agree that the Roberts Court has weakened democratic governance whereas the Warren Court strengthened it. But I would frame this a bit differently. If the Court can strengthen democracy by turning such questions into legal ones, it can just as easily weaken it through the same. There is not a good way to objectively define “democracy.”

I have mentioned the Warren Court’s expansion of voting rights in the 1960s.117 Professor Dorf points to such cases in his effort to differentiate the Warren Court from the Roberts Court.118 John Hart Ely’s Democracy and Distrust figures prominently in Dorf’s argument.119 Ely articulated a theory of representation reinforcement, wherein the Supreme Court would exercise judicial review to strike down laws that interfered with things like voting rights.120 The problem with Ely’s (and Professor Dorf’s) argument, is that the Court can just as easily uphold laws that restrict voting rights, and therefore representation diminution rather than reinforcement.

the

But

this distinction underscores

fundamental subjectivity of “democracy.” The Roberts Court, like the Warren Court, has its own vision of the term and what it entails. The Court has recently endorsed the unitary executive theory, the idea that the president has the power to remove agency heads under the original meaning of Article II.121 But the Court’s endorsement of the theory illustrates the problem of embracing juristocracy in the name of democracy. The Roberts Court believes that the president is “the most democratic and politically accountable official in Government.”122 The idea of “presidential representation” is the underlying theory in Seila Law.123 For the current Court, the president, as an elected official, must constrain the “deep state” for the sake of democracy.124

In his essay, Professor Baude argues for a “methodological Turing Test.”125 Students, as prospective lawyers, must be able to understand and articulate arguments rooted in different approaches to legal interpretation—whether they identify with them or not.126 For example, an originalist lawyer must be able to make non-originalist arguments to a Justice Sotomayor or Justice Kagan.127 This is right if, as is often the case, teachers of constitutional law are training prospective lawyers. But there is an added layer of pedagogical complexity here.

I am not a political scientist, but I read a lot of the literature and teach in a political science department. As such, I emphasize context and contingency as much as legal doctrine qua legal doctrine. This leads to my second suggestion, which I will call a “contextual Turing Test.” Just as students should be able to articulate the best legal arguments on both sides of a methodological debate, they should also be able to see both historical-contextual sides of the debate. This is not necessarily separate from the methodological Turing Test articulated by Professor Baude128 because methodology and context are often intertwined. Students must be able to articulate why a justice in a given snapshot in time decided a case as they did. This involves personal values, as well as political, social, and legal experiences.

It is important that students be able to articulate context because of the differing opinions on all sides of an issue. If we are discussing abortion, for example, a student should be able to understand and articulate the pro-choice and pro-life arguments in their best light. In this sense, a methodological Turing Test and contextual Turing Test might be closely related. As the history above suggests, methodology (originalism) is closely tied to historical context (the Reagan Revolution and the rise of the conservative legal movement). Put differently, it is unhelpful to caricature the argument with which one disagrees.

A further example seems appropriate. I teach the unitary executive theory in constitutional law. Students read Myers v. U.S., Humphrey’s Executor, Morrison v. Olson, and Seila Law v. CFPB. I will not go into the details of the legal doctrine in those cases. Instead, I want to briefly explain how and why I stress political and historical context in class, focusing on Myers. Why did Chief Justice Taft write a strong removal power into the Constitution in Myers? As Noah Rosenblum, Andrea Katz, Niko Bowie, and Daphna Renan have shown, Taft

was operating in the context of the progressive era and was steeped in the intellectual climate of the Lost Cause.129

The Lost Cause mythology

that pervaded American politics and historiography rested on several premises: (1) the Civil War was not about slavery; (2) Reconstruction was an attempt by northern radicals to impose racial equality on the south; (3) Congress was a villainous institution that had to be tamed by the other branches of government.130 The progressives also envisioned a strong president who could overcome the collective action problems of Congress.131 The Lost Cause supplied a historical narrative that demonized Congress and the “carpetbaggers” who sought to impose northern rule on the south.132

I explain that Taft believed in government power, but also believed that Congress must be checked if it attempted to impede the president’s exercise of his constitutional powers.133 But as Rosenblum and Katz point out, Taft was careful to distinguish a Postmaster (or other executive branch officer) from the Civil Service.134 Taft’s views in Myers therefore make sense when one considers his social, political, and legal experiences. As professors, we must bring this context to light so that students are not reading legal doctrine in a disciplinary vacuum. When we do this, it shows students two things: (1) that constitutional law does not simply sprout up like a weed; and (2) it’s important to recognize that personal experience and values play a significant role in judicial decisionmaking.

Another issue is interpretation. More specifically, how should nonoriginalist scholars teach constitutional law in the age of originalism? Leftliberals and progressives have failed to offer a unifying theory to rival originalism on the right.135 Jack Balkin has cogently argued for “Living Originalism” to combat Scalia’s version.136 Echoing James Bradley Thayer and

Oliver Wendell Holmes, Eric Segall has advocated an originalism rooted in strong judicial deference to legislative action.137 Still other scholars have leveled powerful criticisms at originalism itself. I find arguments for deference generally persuasive. Perhaps the solution is to heed the words of thinkers like Felix Frankfurter138 and Alexander Bickel and acknowledge the “countermajoritarian” nature of judicial review.139 Maybe none of these are feasible as a practical matter. After all, deference is a self-enforcing approach to judging. If it is going to work, the justices themselves will have to take a principled stance on the issue, which essentially no one save Frankfurter and Holmes has been prepared to do.

Maybe the alternative is to challenge originalist scholars and judges on their own terms. Legal scholars, historians, and political scientists have done yeomen’s work in exposing the ahistorical nature of originalism. For example, Christine Chabot, has shown that Congress has created independent agencies since the founding, namely the Sinking Fund Commission.140 Jed Shugerman has shown that the Roberts Court’s embrace of the unitary executive theory and the “Decision of 1789” is ahistorical.141 Beau Baumann has persuasively shown that formalist doctrines like the nondelegation doctrine betray a fundamental misunderstanding of Congress’s role throughout history.142 The value of these scholars is that they present a comprehensive rebuttal of originalism. But liberals and progressives are not as unified in opposition as conservatives are in power.

If progressives want to push back on the Roberts Court in a principled way, they need to reckon with the legacy of the Warren Court. In my view, it is unprincipled to criticize the Roberts Court and lionize the Warren Court. Thinkers like Frankfurter and Bickel certainly have a role to play for progressives and liberals. But as mentioned above, maybe the problem is the mechanism that produced Warren Court and Roberts Court precedents— unfaltering faith in the Supreme Court as “other” or somehow different from Congress and the Executive Branch in its desire to make policy.

If the composition of the Court changes, how should progressives approach the precedents of the Roberts Court. In response to my initial essay, Eric Berger offered several possible avenues.143 I will not rehash Berger’s thoughts in full here. But he persuasively argues that a middle ground approach is probably best, as it balances rule of law values and the inherent inclination of new justices to change the law.144 But Berger’s argument assumes the Court should maintain its place upon a pedestal. This is where I disagree with Berger.

The best answer for progressives, I think, is to abandon juristocracy. For much of American history, Congress led the way. The Reconstruction Amendments, the creation of the administrative state, the Civil Rights Act, and the Voting Rights Act were not judicial inventions. They were creations of constitutional amendment, democratic deliberation, and compromise in Congress. This is not to say the Court is unimportant. It is. But as liberal and progressive professors, we must stop engaging in romanticism about the Warren Court, or any court. If we rely on a majority of five judges to grant rights, a different majority can just as easily take them away.

Lionizing the Warren Court falls into the trap of juristocracy because it assumes that Earl Warren and William Brennan are saviors. It assumes that members of the Warren Court were the standard, rather than a brief sixteen-year blip in American history. Brennan and Warren were not appointed to the Court to radically alter the landscape of American society and government; they did as a matter of contingency. As such, we must teach students that the Supreme Court has always sought to aggrandize its own power vis-à-vis the other branches. Instead of praising the liberalism of the Warren Court and condemning the conservatism of the Roberts Court, we need to examine context, rooted in my first question: Why? I might add another question: How do we, as liberals and progressives, proceed from here? The answer is to leave juristocracy behind. To paraphrase the second Justice Harlan: the Court is not a panacea for every social problem that besets the United States.145

Liberals and progressives are becoming somewhat familiar with the problem of juristocracy.146 But along with this new familiarity, liberals and progressives

need to take the next step and incorporate it into pedagogical considerations. Perhaps the suggestions I offer in this essay are unlikely to effectuate immediate change. After all, many of the proposed reforms to the Court would involve legislation or outright constitutional amendment. But in a time where the Republican Party has cemented a 6-3 majority on the Court, liberals and progressives must seek ways to push back outside the formal amendment process.

Abandoning juristocracy is key here. The Warren Court was the zenith of legal liberalism. There is little question the Court changed the landscape of American constitutional law. The real question, though, is whether the Court was a pyrrhic victory for progressives. It appears, in 2025, that it was. The Roberts Court has chipped away at key statutes and doctrines that had been key precedents for decades.147 Great Society liberals gambled on the Court and stood to lose the new rights it granted to Americans. Lionizing the Warren Court is therefore misguided, and progressives should view that Court for what it was: an historical anomaly.

When we combine that notion with a sensitivity to the political and historical context in which the Supreme Court operates, it reveals a much richer way of understanding why the Court decides cases as it does. My suggestions do not amount to an agenda of constitutional revolution for progressives. Such a revolution will likely have to wait for the next several decades. The suggestions in this essay do, however, offer a way for liberals and progressives to teach and engage with constitutional law effectively. At the very least, they can help us see the forest rather than merely the trees.

--- FOOTNOTES ---

ABSTRACT

* Adjunct Assistant Professor of Political Science, Marquette University. This is a substantially revised and expanded version of a blog post that appeared on Dorf on Law. The Author thanks Beau Baumann, Mike Dorf, Phil Rocco, Larry Solum, Michael Smith, Eric Segall, Christine Chabot, Calvin TerBeek, Noah Chauvin, Erica Goldberg, Eric Berger, and Jerry Edwards for their comments on earlier drafts of this paper.

TABLE OF CONTENTS

INTRODUCTION

1 Jesse Wegman, The Crisis in Teaching Constitutional Law, N.Y. TIMES (Feb. 26, 2024),

https://www.nytimes.com/2024/02/26/opinion/constitutional-law-crisis-supreme-court.html.

2 Id. 3 Id. 4 RAN HIRSCHL, TOWARDS JURISTOCRACY 1 (2004). For a useful description of juristocracy, see Allen C. Sumrall & Beau J. Baumann, Clarifying Judicial Aggrandizement, 172 U. PENN. L. REV. ONLINE 24, 31–34 (2023).

5 For positive accounts of the Warren Court, see MORTON J. HORWITZ, THE WARREN COURT AND THE PURSUIT OF JUSTICE, 7 (1998) [hereinafter PURSUIT OF JUSTICE]. See generally MORTON J. HORWITZ, THE WARREN COURT AND THE DEMOCRATIC CONSTITUTION (2024); GEOFFREY R. STONE & DAVID STRAUSS, DEMOCRACY AND EQUALITY: THE ENDURING CONSTITUTIONAL VISION OF THE WARREN COURT (2020).

6 See HIRSCHL, supra note 4. 7 Sumrall & Baumann, supra note 4, at 32. 8 Id. at 34–36. 9 Id. at 26, 33. 10 Id. at 33. 11 See, e.g., William Baude, Teaching Constitutional Law in a Crisis of Judicial Legitimacy, 98 CHI.-KENT L. REV. (forthcoming 2025) (manuscript at 1). Cf. Richard Re, The One Big Question, Keynote Address at the National Conference of Constitutional Law Scholars 1–3 (Feb. 2024).

12 Baude, supra note 11. 13 Id. 14 Id. at 5. 15 Id. at 1. 16 Justin Driver, The Constitutional Conservatism of the Warren Court, 100 CALIF. L. REV. 1101, 1104–

07 (2012) (arguing that the Warren Court was conservative in key cases).

17 See generally Brown v. Board of Education, 347 U.S. 483 (1954). 18 LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 209–10 (2000). 19 See generally id. 20 372 U.S. 335 (1963). 21 384 U.S. 436 (1966). 22 370 U.S. 421 (1962). 23 376 U.S. 254 (1964). 24 Geoffrey R. Stone, The Supreme Court in the 21st Century, 142 AM. ACAD. ARTS & SCI. 36, 43–45 n.62

(2013).

25 Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 301–02 (2022) (overruling Roe v. Wade, 410

U.S. 113 (1973) and Planned Parenthood v. Casey, 505 U.S. 833 (1992 .

26 Students for Fair Admissions v. President & Fellows of Harv. Coll., 143 S. Ct. 2141, 2176 (2023)

(striking down Harvard and the University of North Carolina’s affirmative action programs).

27 New York State Rifle & Piston Ass’n v. Bruen, 597 U.S. 1, 70–71 (2022). 28 See, e.g., Seila L. LLC v. Consumer Fin. Prot. Bureau, 591 U.S. 197, 204 (2020) (endorsing the unitary executive theory); West Virginia v. EPA, 597 U.S. 697, 723–24 (2022) (announcing the major questions doctrine); Loper Bright Enter. v. Raimondo, 603 U.S. 369, 412–13 (2024) (overruling Chevron U.S.A., Inc. v. Nat. Res. Def. Council, 467 U.S. 837 (1984 .

29 303 Creative LLC v. Elenis, 600 U.S. 570, 589 (2023); Fulton v. City of Philadelphia, 593 U.S. 522,

542–43 (2021).

I. THE LEGACY AND LESSONS OF THE WARREN COURT

30 See Dobbs, 597 U.S. 215; Loper Bright, 603 U.S. 369. 31 See, e.g., Seila, 591 U.S. 197; Trump v. U.S., 603 U.S. 593, 606–07 (2024). 32 See, e.g., MICHAEL J. KLARMAN, FROM JIM CROW TO CIVIL RIGHTS 380–81, 384 (2004) (questioning the effectiveness of courts in producing social change); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 40 (2d ed. 1991) (arguing that courts cannot produce social change).

33 U.S. CONST. art. III, § 1, cl. 1. 34 On the early establishment of judicial review, see PHILIP HAMBURGER, LAW AND JUDICIAL DUTY 1–7 (2008). See generally William Michael Treanor, Judicial Review Before Marbury, 58 STAN. L. REV. 455 (2005). 35 On the empowerment of the judiciary by other branches, see generally KEITH E. WHITTINGTON, THE

POLITICAL FOUNDATIONS OF JUDICIAL SUPREMACY (2007).

36 Cooper v. Aaron, 358 U.S. 1, 18 (1958) (citing Marbury v. Madison and the Supremacy Clause for the

proposition that the “federal judiciary is supreme” in interpreting the Constitution).

37 Robert A. Dahl, Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker, 6 J. PUB. L. 279, 285 (1957). The “regime theory” literature is vast. For a sampling of such scholarship, see generally id.; Mark A. Graber, The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary, 7 STUD. IN AM. POL. DEV. 35, 37 (1993); POWE, supra note 18; LUCAS POWE, THE SUPREME COURT AND THE AMERICAN ELITE 1789-2020 (2d ed. 2020); WHITTINGTON, supra note 35; KLARMAN, supra note 32.

38 Dahl, supra note 37. 39 See e.g., Hammer v. Dagenhart, 247 U.S. 251, 272–73 (1918). 40 Id. at 277. 41 POWE, THE SUPREME COURT, supra note 37, at 203–08. 42 Id. at 213–16. 43 On the historiographical debate, see Laura Kalman, The Constitution, the Supreme Court, and the New

Deal, 110 AM. HIST. REV. 1052, 1067–68 (2005).

44 BARRY CUSHMAN, RETHINKING THE NEW DEAL COURT 3 (1998). 45 Lochner v. New York, 198 U.S. 45, 65 (1905). The Lochner Era has inspired a vast literature. For particularly insightful views, see KEITH E. WHITTINGTON, REPUGNANT LAWS 146–73 (2019). See generally PAUL KENS, Lochner v. New York: ECONOMIC REGULATION ON TRIAL (1998); HOWARD GILLMAN, THE CONSTITUTION BESIEGED (1993).

46 See Kalman, supra note 43, at 1053–54. 47 Id. at 1054. 48 See id. at 1055–56.

49 See generally LAURA KALMAN, FDR’S GAMBIT (2022); CUSHMAN, supra note 44; WILLIAM E. LEUCHTENBURG, THE SUPREME COURT REBORN (1995); MARK V. TUSHNET, THE HUGHES COURT: FROM PROGRESSIVISM TO PLURALISM, 1930-1941 (2021). 50 CUSHMAN, supra note 44, at 7 (1998). 51 Nebbia v. New York, 291 U.S. 502, 537–39 (1934). 52 CUSHMAN, supra note 44, at 139. 53 Id. at 155. 54 Borrowing from Thomas Kuhn, Mark Tushnet nicely summarizes the lack of consensus in his Holmes Devise volume: “There was no Constitutional Revolution of 1937, and this is a book about it.” TUSHNET, supra note 49, at 11.

55 379 U.S. 241, 261 (1964). 56 On the Warren Court and its role in the Great Society, see generally POWE, supra note 18. 57 Brown v. Board of Education, 347 U.S. 483, 494–95 (1954). 58 On Brown, see RICHARD KLUGER, SIMPLE JUSTICE 516–26 (1975). Chief Justice Fred Vinson suddenly died in 1953, one year after Brown had first been argued. Pursuant to a political deal during the 1952 presidential election, Dwight Eisenhower appointed Warren to replace Vinson as Chief Justice. See PURSUIT OF JUSTICE, supra note 5.

59 William J. Brennan Jr., Construing the Constitution, 19 U.C. DAVIS L. REV. 2, 7 (1985). On Brennan,

see generally SETH STERN & STEPHEN WERMIEL, JUSTICE BRENNAN: LIBERAL CHAMPION (2010).

60 Griswold v. Connecticut, 381 U.S. 479, 484–86 (1965). 61 Sierra Club v. Morton, 405 U.S. 727, 741–42 (1972) (Douglas, J., dissenting). 62 HUGO LAFAYETTE BLACK, A CONSTITUTIONAL FAITH 8–9 (1968) (“Of course I realize ‘that it is a constitution we are expounding.’ But this does not mean that in order to obtain results thought to be desirable at the time, judges may rewrite our basic charter of government under the guise of interpreting it.”).

63 LAURA KALMAN, ABE FORTAS: A BIOGRAPHY 271–72 (1990). 64 JACK M. BALKIN, MEMORY AND AUTHORITY 89–90 (2024) (“Justice Black and, later, various justices on the liberal Warren Court repeatedly invoked the framers to legitimate elements of the New Deal/civil rights regime, to secure equality in voting rights, to reform police practices, to require separation of church and state, to protect civil liberties, and, above all, to justify overturning many existing legal doctrines.”).

65 Calvin TerBeek, “Clocks Must Always Be Turned Back”: Brown v. Board of Education and the Racial

Origins of Constitutional Originalism, 115 AM. POL. SCI. REV. 821, 821–22 (2021).

66 See Bob Fitch, John Birch Society Billboard Calls for the Impeachment of Earl Warren (photograph),

in STAN. UNIV. LIBR. (1966).

67 William F. Buckley, Jr., Why the South Must Prevail, 4 NAT’L REV. 148, 148–49 (1957).

68 Corinna B. Lain, Countermajoritarian Hero or Zero: Rethinking the Warren Court’s Role in the

Criminal Procedure Revolution, 152 U. PENN. L. REV. 1361, 1364 (2004).

69 Mapp v. Ohio, 367 U.S. 643, 659–60 (1961) (overruling Wolf v. Colorado, 338 U.S. 25 (1949 . 70 384 U.S. 436, 467–71 (1966). 71 See Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 HARV. L. REV. 1, 35 (1959)

(declining to justify Brown based on a theory of “neutral principles”).

72 RICK PERLSTEIN, NIXONLAND 202 (2008) (“[Nixon] introduced himself as a crusader for law and

order.”).

73 EARL WARREN, THE MEMOIRS OF CHIEF JUSTICE EARL WARREN 323 (1977). 74 DIRTY HARRY (Warner Brothers 1971); DEATH WISH (Paramount Pictures 1974). 75 On defenses of the Warren Court by legal liberals, see LAURA KALMAN, THE STRANGE CAREER OF

LEGAL LIBERALISM 89–90 (1997).

76 See JOHN HART ELY, DEMOCRACY AND DISTRUST 100 (1980). Professor Dorf draws a distinction rooted

in Ely’s theory of representation reinforcement. I address this critique later in this article. See infra note 119.

77 John Hart Ely, The Wages of Crying Wolf: A Comment on Roe v. Wade, 82 YALE L.J. 920, 933 (1973). 78 Charles L. Black, Jr., The Lawfulness of the Segregation Decisions, 69 YALE L.J. 421, 428 (1960). 79 See CHARLES R. EPP, THE RIGHTS Revolution 48–52 (1998). 80 Steven Teles, Transformative Bureaucracy, 23 STUD. IN AM. POL. DEV. 61, 76 (2009). 81 See EPP, supra note 79, at 45.

II. THE CONSERVATIVE LEGAL MOVEMENT AND THE ROBERTS COURT

82 Id. at 56. 83 LAURA KALMAN, THE STRANGE CAREER OF LEGAL LIBERALISM 8–9 (1997). 84 Id. at 9. 85 See id. 86 Id. 87 Id. at 139–42. 88 Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 13 (1971). 89 See RAOUL BERGER, GOVERNMENT BY JUDICIARY 4–5 (1977). 90 Bork, supra note 88, at 17. 91 See Gerard E. Lynch, Government by Judiciary: The Transformation of the Fourteenth Amendment, 63 CORNELL L. REV. 1091, 1094 (1977) (reviewing RAOUL BERGER, GOVERNMENT BY JUDICIARY (2d ed. 1977 ; Bork, supra note 88.

92 Lynch, supra note 91, at 1091. 93 See Teles, supra note 80, at 63–65. 94 See id. at 76.

95 See id. at 61 (chronicling Meese’s influence on the conservative legal movement); see also CHAD M. OLDFATHER, JUDGES, JUDGING, AND JUDGMENT: CHARACTER, WISDOM, AND HUMILITY IN A POLARIZED WORLD 124–30 (2025).

96 Id. at 79. 97 See Teles, supra note 80, at 77. 98 See Antonin Scalia, Originalism: The Lesser Evil, 57 U. CINN. L. REV. 849, 852 (1989). 99 For example, Michael Smith has argued that the Court’s turn to “history and tradition” in Bruen, Dobbs, and Kennedy v. Bremerton School District, are marked departures from Scalia’s advocacy of original public meaning. See Michael L. Smith, Abandoning Original Meaning, 86 ALB. L. REV. 43, 76 (2023).

100 Id. at 47. 101 Id. at 50. 102 See Geoffrey R. Stone, The Roberts Court, Stare Decisis, and the Future of Constitutional Law, TULANE

L. REV. 1533, 1538–42 (2008).

103 See District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment protects an individual right to firearms for self-defense); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111, 2132 (2022) (holding that gun regulations must be tied to an historical analogue); Students for Fair Admissions v. President & Fellows of Harv. Coll., 143 S. Ct. 2141, 2175 (2023) (striking down Harvard and North Carolina’s affirmative action programs under the Equal Protection Clause).

104 See Kennedy v. Bremerton School Dist., 597 U.S. 507, 535 (2022); Town of Greece v. Galloway, 572

U.S. 565, 582–83 (2014).

105 Bruen, 597 U.S. 2126 (“[T]he government must demonstrate that the regulation is consistent with this Nation’s historical tradition of firearm regulation.”). On tradition, see Sherif Girgis, Living Traditionalism, 98 N.Y.U. L. REV. 1477, 1512 (2023). 106 See Stone, supra note 102. 107 See, e.g., McGirt v. Oklahoma, 140 S. Ct. 2542, 2477 (2022) (holding that the eastern half of Oklahoma

is tribal land); Haaland v. Brackeen, 143 S. Ct. 1609, 1641 (2023) (upholding the Indian Child Welfare Act).

108 Bostock v. Clayton County, 140 S. Ct. 1731, 1754 (2020). 109 According to Steve Vladeck, of the thirty-two non-unanimous opinions in the 2023-24 term, eleven were decided 6-3 with the conservatives in the majority and liberals in dissent. Steve Vladeck (@steve_vladeck), X (July 1, 2024, 10:40 AM), https://x.com/steve_vladeck/status/1807801529560113506.

110 Some nuance is important here. The Warren Court operated within the New Deal and Great Society coalitions that dominated American politics for over thirty years. See EARL M. MALTZ, THE COMING OF THE NIXON COURT 1–3 (2016). The Roberts Court has existed in a less stable political climate—Roberts has been

III. A PATH FORWARD FOR PROGRESSIVES AND LIBERALS

the chief justice for two Republican presidents and two Democratic presidents. About the Court, SUP. CT. OF THE U.S. https://www.supremecourt.gov/about/biographies.aspx. Perhaps the Burger Court is a good comparison— Nixon nominated four justices to the Court: Burger, Powell, Rehnquist, and Blackmun. MALTZ, supra note 110, at viii, 5. Burger was a “law and order” Republican whose primary criticism of the Warren Court lay in its criminal procedure decisions. Id. at 5. Powell was a moderate Virginia Republican who was the decided “swing vote.” Id. at 12–13. Rehnquist was the most conservative of the Nixon appointees. Id. at viii. Finally, Blackmun’s jurisprudence began as conservative, but he gradually shifted to the left as typified in his authoring the majority opinion in Roe. Id. The Court continued to deliver some victories for liberals. Id. at 14–15. On the Burger Court, see generally id. (discussing the 1972 term); THE BURGER COURT: THE COUNTER-REVOLUTION THAT WASN’T (Vincent Blasi ed., 1983) (collecting essays detailing a continuance of Warren Court approaches to constitutional interpretation).

111 MARK TUSHNET, TAKING BACK THE CONSTITUTION 43 (2020). The Court’s decisions involving the EPA,

student loans, and voting rights seem to bear this assertion out.

112 Linda Greenhouse, U.S., in a Shift, Tells Justices Citizens Have a Right to Guns, N.Y. TIMES (May 8, 2002), https://www.nytimes.com/2002/05/08/us/us-in-a-shift-tells-justices-citizens-have-a-right-to-guns.html.

113 GORDON SILVERSTEIN, LAW’S ALLURE 75–83 (2009). 114 Michael Dorf, What’s Different About the Roberts Court, DORF ON LAW (April 4, 2024),

https://www.dorfonlaw.org/2024/04/whats-different-about-roberts-court.html.

115 Id.

116 Id. 117 See Baker v. Carr, 369 U.S. 186, 209 (1962) (holding that apportionment is a justiciable issue); Reynolds

v. Sims, 377 U.S. 533, 568 (1964) (holding that voting districts should be as equally drawn as possible).

118 Dorf, supra note 114. 119 See id. 120 JOHN HART ELY, DEMOCRACY AND DISTRUST 73–105 (1980). 121 See, e.g., Seila Law v. CFPB, 140 S. Ct. 2183, 2191 (2020). 122 Id. 123 See JOHN A. DEARBORN, POWER SHIFTS: CONGRESS AND PRESIDENTIAL REPRESENTATION 1–4 (2021). 124 See Beau J. Baumann, Americana Administrative Law, 111 GEO. L.J. 465, 481 (2023). On the “deep state,” see STEPHEN SKOWRONEK, JOHN A. DEARBORN, AND DESMOND KING, PHANTOMS OF A BELEAGUERED REPUBLIC 3–12 (2021).

125 Baude, supra note 11, at 2. 126 Id. 127 Id. Baude’s example involves a non-originalist lawyer making originalist arguments to Justice Gorsuch.

Id.

128 Id.

129 See generally Andrea Scoseria Katz & Noah A. Rosenblum, Becoming the Administrator-in-Chief: Myers and the Progressive Presidency, 123 COLUM. L. REV. 2153, 2161 (2023); Nikolas Bowie & Daphna Renan, The Separation-of-Powers Counterrevolution, 131 YALE L.J. 2020, 2028 (2022).

130 Bowie & Renan, supra note 129, at 2020, 2047–48. 131 Id. at 2083 n.395. 132 See ERIC FONER, RECONSTRUCTION: AMERICA’S UNFINISHED REVOLUTION 1863–1877 xxi (1988) (synthesizing revisionist interpretations of Reconstruction); cf. WILLIAM A. DUNNING, RECONSTRUCTION: POLITICAL AND ECONOMIC 1865-1877, 116 (1907) (articulating the Lost Cause interpretation).

133 On Taft’s constitutional philosophy, see KEVIN J. BURNS, WILLIAM HOWARD TAFT’S CONSTITUTIONAL

PROGRESSIVISM 179 (2021).

134 Katz & Rosenblum, supra note 129, at 2153, 2160–61 (quoting Myers v. U.S., 272 U.S. 52 (1926 . 135 See JACK BALKIN, LIVING ORIGINALISM 334–35 (1st ed. 2011). 136 See generally id. at 7.

137 See generally ERIC J. SEGALL, ORIGINALISM AS FAITH 12 (2018). 138 On Frankfurter, see generally BRAD SNYDER, DEMOCRATIC JUSTICE: FELIX FRANKFURTER, THE

SUPREME COURT, AND THE MAKING OF THE LIBERAL ESTABLISHMENT 5 (2022).

139 ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 16–23 (1986). 140 Christine Kexel Chabot, Is the Federal Reserve Constitutional? An Originalist Argument for

Independent Agencies, 96 NOTRE DAME L. REV. 1, 3 (2020).

141 Jed H. Shugerman, The Indecisions of 1789: Inconstant Originalism and Strategic Ambiguity, 171 U.

PA. L. REV. 753, 753 (2023).

142 Baumann, supra note 124, at 465. Other scholars have taken originalist proponents of the nondelegation doctrine on their own terms. See, for example, Julian Davis Mortenson & Nicholas Bagley, Delegation at the Founding, 121 COLUM. L. REV. 277, 277 (2021).

CONCLUSION

143 Eric Berger, How Should a Future Progressive Court Treat Roberts Court Precedents?, DORF ON LAW

(April 11, 2024), https://www.dorfonlaw.org/2024/04/how-should-future-progressive-court.html.

144 Id. 145 Reynolds v. Sims, 377 U.S. 533, 624–25 (1964) (Harlan, J., dissenting). 146 Wegman, supra note 1.

147 Shelby County and the invalidation of Section 5 of the Voting Rights Act is one of the biggest examples.