Teaching Constitutional Law in a World Where the Justices Just Make Up the Law

By Eric Segall

I am often asked by other law professors how I teach constitutional law given my hyper-critical views about the Supreme Court. I respond by saying that: 1) the subject is on the bar exam so of course I emphasize and make clear the black letter "law;" 2) the class is wonderful for helping students improve their critical thinking; 3) if you are going to practice constitutional law you need to learn how to talk the talk of formalism and legal rules; and 4) I disclose my priors to students on the first day of class so they have an idea what the course is going to be like.

Nevertheless, I understand why I get this question all the time. As Professor Christopher Sprigman recently said on Twitter, he tried teaching constitutional law but stopped "because my students were unhappy when I would point out how the Supreme Court was making it up, often incoherently. Students want to believe in what is in reality a bad discipline." Numerous other professors have complained about the same frustration to me over the years.

Professor Sprigman's charge that the Justices are just "making it up" needs to be unpacked just a bit because many Supreme Court experts likely disagree or perhaps phrase what the Justices do less insultingly. But Sprigman is exactly right. In most constitutional law cases, there is no helpful text or history and the Justices (and lower courts) spend most of their time discussing prior Supreme Court decisions (where there was also no helpful text or history).

I will support Sprigman's descriptive account with 10 representative examples that show how judge-made constitutional law is little more than the aggregate of the Justices' value preferences or, on some occasions, the results of bargaining among the Justices to reach a five-vote result that makes little sense. I could provide 100 examples if space and the readers' patience allowed. I did provide many more examples in my first book. After the examples, I explain why judge-made constitutional law is different from judge-made common law and then close with a few more thoughts about teaching.

1) The law of affirmative action in higher education is that racial quotas are per se unconstitutional but schools seeking a "critical mass" of minority students is fully constitutional. I dare anyone to explain how a school knows whether it has enough minority students to constitute a "critical mass" without having a number representing a floor of minority students (in other words, a quota).

2) The law of taxpayer standing is that a plaintiff may challenge a statute passed by Congress under Article I, Section 8 that allegedly violates the Establishment Clause, but a plaintiff may not challenge the expenditure of government funds by the President of the United States that allegedly violates the Establishment Clause if those funds come from general appropriations. There is no difference between the respective personal stakes of the plaintiffs in those two cases.

3) On the same day, the Court held that two Ten Commandments displays in Kentucky courthouses violated the Establishment Clause, but a Ten Commandments display on public property near the Texas Capitol did not violate the Establishment Clause. The Supreme Court building itself, by the way, has a Ten Commandments display.

4)  The Eleventh Amendment prohibits suits against states by citizens of "another state" but the Justices have prohibited suits against states by citizens of their own states even though no constitutional text bars such suits.

5) The Eleventh Amendment applies to "any suit in law or equity" but the Court has said it does not prohibit requests for injunctive relief (equity) while it does bars suits for damages (law).

6) There is not a single word in the Constitution suggesting that Congress may not use its enumerated powers to direct states legislatures and executives to enforce federal law, yet the Court has held that Congress may not, even pursuant to an express grant of power, direct states to help enforce federal law (unless the law also applies to non-state actors as well as the states).

7) Congress may require state courts to hear cases involving federal issues even if state courts don't want to hear those cases. In other words, Congress can tell state judges what to do despite the restriction in No. 6.

8) There was a fairly lengthy period of years when the Court interpreted the Establishment Clause to allow states to provide textbooks free of charge to children attending private religious schools but not any other materials such as maps, erasers, and computers. During this period, states could give atlases whose only content was maps to students attending religious schools but not just maps themselves. In fairness, the Court now allows states to give just about anything it wants to religious schools as long as it provides the same materials to non-religious schools.

9) A member of the military on trial for serious crimes arising out of his service is not allowed an Article III Court (and jury) but a person against whom a person in bankruptcy has filed a state law tort or contract claim has a right to an Article III Judge.

10) A state may not require "pregnancy crisis centers" to inform their visitors of the availability of state resources for abortion because doing so violates the first amendment, but a state does not violate the first amendment by requiring family planning clinics to provide materials to its visitors listing state resources for childbirth and adoption.

I could go on and on. On the one hand, teaching constitutional law is an excellent way to improve the critical thinking skills of our students. On the other hand, it is quite difficult to teach constitutional law honestly and not admit to the students that it is all just "made up" by the Justices.

One may object to all this by arguing that Supreme Court-made constitutional law is indistinguishable from judge-made common law, which has a long pedigree. There are, however. two major problems with that analogy. First, common law decisions can be overturned by legislators whereas it takes a constitutional amendment to reverse a Supreme Court constitutional decision.

Second, as a general matter, state court judges who issue common law decisions do not pretend "text and history make us do it." The policy concerns driving the common law are usually discussed openly by judges whereas the Supreme Court likes to pretend its decisions are based on non-policy formal considerations. This difference is important because it cuts to the heart of government transparency.

The reality is that the Justices do just "make up" most of constitutional law and maybe because the stakes are so high, much of that law is incoherent. I sympathize with professors like Christopher Sprigman who just can't bear to pretend otherwise and who do not want to spend their careers seeing how students are disappointed by this reality. For me, however, as I tell my students during the first day of every course I teach, my descriptive account of how the Supreme Court decides cases is not meant to make them cynical but to make them realistic. And the road to realism is paved with abundant tools to make them better critical thinkers and thus better lawyers.