Monday, July 09, 2007

Is it Possible to Teach the Meaning of Precedent in the Era of the Roberts Court?

In an insightful article in the 1996 Michigan Law Review, Harvard law professor Carol Steiker argued that the Burger and Rehnquist Courts had made their peace with the liberal criminal procedure precedents of the Warren Court by maintaining their form and in some cases even extending them, but rendering them mostly toothless through a variety of procedural devices. (The article is Counter-Revolution in Constitutional Criminal Procedure? Two Audiences, Two Answers, 94 Mich L Rev 2466 (1996), available at Hein, WestLaw and Lexis, but only by subscription). Here is Steiker's own summary of her thesis:
The Burger and Rehnquist Courts have not altered radically - and indeed, occasionally have bolstered - the Warren Court's constitutional norms regarding police practices. The edifice constructed by the Warren Court governing investigative techniques under the Fourth, Fifth, and Sixth Amendments remains surprisingly intact. Rather than redrawing in any drastic fashion the line between constitutional and unconstitutional police conduct, the Supreme Court has revolutionized the consequences of deeming conduct unconstitutional. This revolution has not taken the form of wholesale abolition of the Fourth Amendment's exclusionary rule, or the Fifth or Sixth Amendments' mandates of exclusion; rather, the Court has proliferated a variety of what I would term "inclusionary rules" - rules that permit the use at trial of admittedly unconstitutionally obtained evidence or that let stand criminal convictions based on such evidence. Examples of "inclusionary rules" are the doctrines regarding standing, the good-faith exception to the warrant requirement, the "fruit of the poisonous tree," impeachment, harmless error, and limitations on federal habeas review of criminal convictions.
I want to suggest that the emerging modus operandi of the Roberts Court will make the Burger and Rehnquist Courts look like pikers when it comes to below-the-radar counter-revolution. For one thing, the Roberts Court is not going to limit itself to criminal procedure or any discrete area of the law. For another, the Court has added a new technique: now the ascendant conservative majority does not even acknowledge that what it is doing is completely inconsistent with prior liberal precedents, thus at least requiring at least a new exception; rather, the new technique is simply to assert fidelity to the prior precedents and then rule the opposite way.

Here I want to register a parochial complaint against this particular brand of what is charitably called minimalism: It's going to make it hard to train new lawyers about what it means to reason from or even follow precedent. Suppose I gave students an exam question in which they were asked whether a federal statute banning partial-birth abortion was valid if it contained no health exception, or if federal campaign finance regulation were valid if it limited union- and corporate-funded speech that mentions specific candidates during an election period. Prior to this year's cases, the answers would obviously have been no and yes, respectively. If a student wrote that the existing precedents were wrong and cogently offered reasons for overruling them, then, whether or not I agreed with the student's bottom line, that would earn her a good grade (assuming I didn't set the case in a lower court), but if she gave the answers yes and no, respectively, as the Court did this past Term, while not arguing for overturning the earlier precedents, I would have to give her a very poor grade. Indeed, I wouldn't even ask such ridiculously easy exam questions because the most important skill students acquire in law school is the ability to distinguish hard from easy questions. An easy question does not permit students to show off their legal reasoning skills. In getting easy questions wrong, the Roberts Court makes it nearly impossible for us law teachers to demonstrate the difference between easy and hard questions.