Liberals Freak Out About The Supreme Court ... As Conservatives Have Been Doing Since FDR
Print Friendly and PDF

Here's Stephen E. Sachs, the Antonin Scalia Professor of Law at Harvard Law School, reacting to a New York Times article about Leftist law professors literally crying about a Supreme Court that has Kavanaugh and Amy Coney Barrett on it:

He's talking about The Crisis in Teaching Constitutional Law, by Jesse Wegman, NYT, February 26, 2024.

Wegman is, according to his bio "a member of the editorial board, where he has written about the Supreme Court and national legal affairs since 2013. He is the author of “Let the People Pick the President: The Case for Abolishing the Electoral College.”

He starts out:

If you attended law school at any time over the past half-century, your course in constitutional law likely followed a well-worn path.

First you learned the basics: the Supreme Court’s power to say what the Constitution means. Then you read and discussed cases that set precedents for different parts of the Constitution — the commerce clause, presidential powers, due process, equal protection and so on. Finally you studied how the court balances individual liberties against the government’s need to act in the public interest.

It was all based on an underlying premise that has long bound together everyone involved in the project of training the next generation of lawyers: The Supreme Court is a legitimate institution of governance, and the nine justices, whatever their political backgrounds, care about getting the law right. They are more interested in upholding fundamental democratic principles and, perhaps most important, preserving the court’s integrity than in imposing a partisan agenda.

Who actually ever believed that? There's a theory called "legal realism" which says that judges aren't even likely to decide on the law and the merits, which in practice means that if you're a white Southerner, the court will decide against you, even if you're in the right.

Anyhow, the sensitive law professors are seeing cases decided against them, Wegman writes, and they can't stand it:

Under the pretense of practicing so-called originalism, which claims to interpret the Constitution in line with how it was understood at the nation’s founding, these justices have moved quickly to upend decades of established precedent — from political spending to gun laws to voting rights to labor unions to abortion rights to affirmative action to the separation of church and state. Whatever rationale or methodology the justices apply in a given case, the result virtually always aligns with the policy priorities of the modern Republican Party.

And that has made it impossible for many professors to teach in the familiar way.

“Teaching constitutional law today is an enterprise in teaching students what law isn’t,” Leah Litman, [Email her] a professor at the University of Michigan law school, told me.

And it was Rebecca Brown [Email her] of the University of Southern California who " literally burst into tears" at the thought of conservative jurisprudence. That is an argument against lady law professors, not against a conservative Court.

In his Tweet above, Steve Sachs points out that he, as an originalist, has managed to teach Erie, by which I assume he means the 1938 FDR era case of Erie Railroad Co. v. Tompkins (in which, as Wikipedia writes "the Court held that the United States does not have a general federal common law and that U.S. federal courts must apply state law, not federal law, to lawsuits between parties from different states that do not involve federal questions. In reaching this holding, the Court overturned almost a century of federal civil procedure case law, and established the foundation of the modern law of diversity jurisdiction." )

This is not a big Culture War flame point, but it was an important step on the road to making the Supreme Court the "Supreme Ruler" that it is today, and it was around this time that conservatives started talking about the dangers of an unelected Supreme Court deciding things on their own principles—or in political collaboration with the FDR White House.

In the 1950s, after Brown V. Board, conservative, especially Southern conservatives, started to refer to the Court as the "Extreme Court".


There's a lot more that originalists, conservatives, and just normal people who don't want to be victims of crime could say about the Supreme Court of "the past half-century" as Wegman puts it, including the Warren Court's pro-criminal craziness that led to the crime wave from the 60s to to the 90s, and the Griggs decision("disparate impact"), Plyler v. Doe, which requires states to give free education to illegal alien children, and so on.

But of course, the whole point is that these Leftist law professors never had any Constitutional principles at all—the only reason they respected Supreme Court decisions is because they were winning.

Print Friendly and PDF