Tuesday, February 23, 2021
David Fontana (George Washington), What Do Constitutional Law Professors Do?, 2020 Wis. L. Rev. 317 (2020):
This Essay—written for a symposium hosted by the Wisconsin Law Review on Andrew Coan’s splendid new book [Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (Harvard University Press 2019)]—examines the social space that nonclinical, tenure-track American constitutional law professors occupy, and whether that social space is a desirable one.
Constitutional law professors are relatively unique among faculty in the current American research university for the degree to which they speak to those inside and outside of the university. Constitutional law professors are socialized by and participate in the research community of the university but also the elite legal profession. They aspire to speak truth to power, but they are also part of the power that they seek to evaluate. It is good for a society to have scholarly insights brought to bear on important decisions by powerful people, and law professors are increasingly the ones doing that. It is also good to have a scholarly discipline generated by combining its own original insights with the insights of other disciplines. As the humanities and social sciences produce more technical scholarship, more removed from the comprehension and concerns of daily life, this engaged and interdisciplinary role for constitutional law professors becomes more important because it is more uncommon. However, being such a part of the system that one aspires to evaluate also encourages law professors to be more deferential and defensive of existing power structures.
John Hart Ely inscribed his landmark book about constitutional theory to Chief Justice Earl Warren—his former boss—and wrote about him that “[y]ou don’t need many heroes if you choose carefully.” We might never be able to appreciate the heroism of Chief Justice Warren—if you believe he was heroic—without the scholarship of a law professor (and dean) like Ely. It took a scholar who was present for the deeds of Chief Justice Warren truly to understand them and to theorize them. Political scientists might have been dissecting the political leanings of the Justices on the Warren Court, and humanists analyzing their theories of justice. It took a law professor, though, to understand what Chief Justice Warren was doing, and what it meant for our country. Even more dramatically, without the support of legal academics like Ely, could Chief Justice Warren ever have been heroic in the first place (if indeed he was)?
But what about when institutions like the Supreme Court are far from heroic? Does the degree to which law professors are part of the same social space as institutions like the Court make it hard to appreciate when they go astray? Members of a family are the only ones who can ever truly understand that family, but therefore are often the only ones who can ever truly be critical of it.