Baude: Teaching Constitutional Law In A Crisis Of Judicial Legitimacy

Following up on my previous post, New York Times, The Crisis In Teaching Constitutional Law: Will Baude (Chicago; Google Scholar), Teaching Constitutional Law in a Crisis of Judicial Legitimacy,  98 Chi.-Kent L. Rev. ___ (2024):

Recent developments in the Supreme Court have prompted many professors to ask: How can we teach constitutional law in such a crisis of judicial legitimacy? How can we still teach students that courts are a place to seek justice?

These sentiments reflect a real challenge for teaching constitutional law today, and I offer several suggestions for teaching law in light of the current Supreme Court.

But I also fear that these sentiments demonstrate a lack of perspective. The real crisis in teaching constitutional law today is not in the Supreme Court, but in legal academia: the question is whether we can maintain the perspective necessary to teach effectively about the Court and the Constitution.

Conclusion
Now let me tell you why we should not succumb to cynicism about con-stitutional law.

In 1939, C.S. Lewis preached a sermon called “Learning in War-Time.” “A University is a society for the pursuit of learning,” he began. But, “this seems to be an odd thing to do during a great war. What is the use of beginning a task which we have so little chance of finishing? Or, even if we ourselves should happen not to be interrupted by death or military service, why should we—indeed how can we—continue to take an interest in these placid occupa-tions when the lives of our friends and the liberties of Europe are in the bal-ance? Is it not like fiddling while Rome burns?”

Lewis’s ultimate answer was that the war had not truly altered the hu-man condition: “All the animal life in us, all schemes of happiness that centered in this world, were always doomed to a final frustration. In ordinary times only a wise man can realize it. Now the stupidest of us knows. We see unmistakably the sort of universe in which we have always been living, and must come to terms with it.” If learning was worth doing in normal times, it was no less worthy during a time of war.

So, too, if constitutional law was worth learning and arguing about in 1964 or 1984, it is worth learning and arguing about in 2024. Once we realize that somebody has always been holding the short end of the Supreme Court, somebody has always been losing, somebody has always been having important decisions ripped away from them on contestable legal grounds, the task of the professor has not fundamentally changed.

It is not my place to tell you, let alone my students, how to feel about the Supreme Court, or whether to try to decimate it as an institution. But if we cannot understand it, if we cannot teach it, we have no business in this business.