Constitutional Law and Constitutional Scholarship:
Recent Developments and Future PathsI. Trends in Constitutional Law
Let’s look at the long stable
2) The Court remains sharply divided over its role in recognizing and protecting unenumerated rights. In Glucksberg (1997), the Court tried to declare “this far and no further,” which was largely but not entirely an accurate statement of what was to come.
● Troxel v. Granville showed that it was possible to go further simply by characterizing a rights claim as an application of an “old” right rather than a “new” one.
● Lawrence v. Texas showed that it was possible to accept rights claims without speaking the language of fundamental rights.
● The persistence of disagreement over abortion—extending into the
3) If the triumph of color-blindness in the
5) The Court’s death penalty jurisprudence nibbled around the edges—invalidating executions of the mentally retarded and minors, even as it upheld (this Term) lethal injection—while the real action has been mostly legislative. AEDPA greatly restricted the ability of federal courts to grant relief, but meanwhile two factors have slowed the pace of executions: revelations of innocent people on death row; and decline in violent crime from the peaks of the early 1990s. As crime has begun to increase again, the landscape may shift once more.
6) The early
7) If there is any single success story of the last century of Supreme Court jurisprudence, it is the migration of a commitment to freedom of speech from the fringes (Brandeis dissents), to the liberal wing of the Court, to a position held unanimously. Credit here goes to parts of the political left, which made the fight against “political correctness” a cause of the right, and thus created a stable consensus for free speech across the ideological spectrum of the Justices.
8) Prior to 9/11, when I taught separation of powers, the focus was largely on the limits imposed by Article I, § 7 and the Appts Clause on Congressional power to make law and to restrict the President. (E.g., Chadha, Bowsher, Morrison.) Today, the most salient cases involve the President’s ability, as Commander in Chief, to exercise power either not conferred by Congress or expressly forbidden. It remains to be seen whether the cases coming out of the military detention and trial policies of the Bush Administration achieve long-term canonical status, or retreat once more into the background. The inauguration of the next President—whether a Democrat or a Republican—will likely result in some substantial change in those policies.
● However, on most other issues, a great deal will likely depend on the outcome of the next Presidential election. The accession to the Court of a conservative majority for another generation will mean that the important disputes for the Court going forward will be intra-conservative ones. By contrast, should a Democratic President name the next new Justice or Justices to the Court, the familiar battle lines will likely persist.
II. Trends in Constitutional Scholarship
● Trends in constitutional scholarship run parallel to trends in legal scholarship more broadly: Less doctrinal analysis; less focus on normative questions from the perspective of a “shadow Court”; more “sociological”; more inter-disciplinary; more fragmentary.
1) During roughly the period I’m describing, the Court has become more conservative, whereas legal academia has remained relatively liberal. A project of justifying judicial review, or justifying the work of the Rehnquist and Roberts Courts, is unappealing to most liberal legal academics. Meanwhile, telling the Court how to decide cases is an odd exercise if one doubts (as legal academics have excellent reason to doubt) that the Justices care what we have to say. To work as a causal hypothesis, this theory must accept substantial lag: Liberal academics only began to turn on the Court after many years of conservative rulings, perhaps enticed by the fact that the Court has not—even today—fully turned its back on the liberal precedents of the
2) The internal standards of legal scholarship have changed as law schools have become more like other university departments. Legal academia values traditional scholarship less than it used to—or at least values the external perspective to a much greater degree than it used to.
● Future directions
1) A change in the Court’s jurisprudence could bring academics either closer to the Court, or could drive us even further away. Much could depend on the outcome of the November Presidential election.
2) The changes in the nature of the legal academic enterprise are part of an ongoing long-term process, but are not necessarily irreversible, at least in the long run.
a) There are many fewer “bar schools” now than in the past. Entry-level appointment standards and tenure standards are high just about everywhere. This is a long-term trend.
b) The existence of the State bar as a credentialing cartel has insulated law schools from the forces that have been roiling undergraduate education in recent decades. (See November NY Times story). Increased reliance on adjuncts will not necessarily have an impact on legal scholarship because most adjuncts do not produce legal scholarship. Thus, traditional academics—whose absolute numbers, even in the arts and sciences, are not shrinking—can continue to produce scholarship according to their own standards.
Posted by Mike Dorf