How should law professors teach about the foundations of constitutional law when it’s clear the current Supreme Court won’t respect precedent and approach the law as the institution once had?
Berkeley Law Dean Erwin Chemerinsky explores the impact on legal education — and the public’s perception of the legal system — of the court’s change in trajectory. His three guests, who are all teaching or have taught Constitutional Law, are Jeffrey Abramson, a professor of law and government at the University of Texas; Melissa Murray, a professor at NYU Law and a co-host of the podcast “Strict Scrutiny”; and journalist Dahlia Lithwick, who chronicles the court for Slate.
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More Just from Berkeley Law is a podcast about how law schools, students, and professors can make our legal system better and more equitable for all.
The rule of law — and the role of the law — has never been more important. In these difficult times, law schools can, and must, play an active role in finding solutions. But how? Each episode of More Just starts with a problem, then explores potential solutions, featuring Dean Erwin Chemerinsky as well as other deans, professors, students, and advocates, about how they’re making law schools matter.
Episode Transcript
Erwin Chemerinsky:
Hello. I’m Erwin Chemerinsky, Dean of Berkeley Law. This is More Just, a podcast about what law schools, students and professors can do to make our legal system better and more equitable for everyone. Today we’re here to talk how to teach law students about the foundations of constitutional law, when many of them have little faith that the current Supreme Court respect precedent or advance freedom in equality. It’s now clear that the court with six conservatives, three appointed by Donald Trump, was poised for major changes in constitutional law. Roe v. Wade, have central precedence and for no reason other than the conservatives have the votes to do so. The court seems clearly on the verge of a major expansion of gun rights and of demolishing any notion of a wall separating church and state.
Already, the court is granted review for next term two cases that are likely to end Affirmative Action by college and universities. How do we teach constitutional law at this time? I’m joined by three of the smartest, sharpest commentators on the Supreme Court. I’m going to do just the shortest of introduction on them so we can get to the material. Jeffrey Abramson is a professor of law and government at the University of Texas. Dahlia Lithwick is a journalist to chronicles the court for Slate and who host her podcast, Amicus. Melissa Murray is a professor at NYU Law School, a co-host of the podcast, Strict Scrutiny and my immediate predecessor when she was the interim Dean at Berkeley Law. Welcome to each of you, and thank you so much for joining me for this conversation. I want to begin by asking whether you perceive your students as approaching constitutional law differently than they used to? Do you have a sense that there are more pessimistic and discouraged about constitutional law in the court? Melissa, could I start with you?
Melissa Murray:
Sure. It’s nice to be back at Berkeley, if only virtually. I can smell the eucalyptus wafting across the line here. I do think the students are a little different than they used to be. I think constitutional law has always been a marquee course that many students identify as one of the core reasons that they come to law school, and so it is a little disheartening, I think, to see them so disaffected. I think last year in particular, when the semester began, it was just a few days after the events of January 6th and going in to teach that first class after we’d effectively had an attempted coup was really hard to talk about the structure of government, to talk about all of these checks and balances that were built to create a durable democracy.
They worked for the most part, but not necessarily in the way that we would’ve expected. I think we really did avoid very narrowly something quite profound. I think the students also recognized that as well. So I think there is a shift in the energy. I think they’re less hopeful. They’re a little more disaffected. To be sure, some of them are absolutely delighted. I think they’re excited about the turn the court has taken, but I think more of them, regardless of ideology, regardless of what they hope the outcomes of these cases are think that what is happening right now is really a departure from some basic principles of the Anglo-American tradition, respect for precedent, slow, steady movement, and there will be movement, but they won’t be these large lurches. I think they recognize that what is afoot is very different from what we’ve seen before.
Erwin Chemerinsky:
How are you teaching about the events of January 6th now a year later? Are you going to cover it in your Constitutional Law class, and in what way?
Melissa Murray:
Well, actually think the whole Trump Administration really, and I’ve said this before, was the gift that keeps on giving to con law professors, because it was every outlandish hypothetical you could think of actually happening in real time. I think you’re still seeing vestigial aspects of that and the work of the January 6th Special Committee questions about executive privilege, like does executive privilege continue when you’re no longer the president? That’s an important constitutional law question, and what counts as an attorney for purposes of attorney/client privilege, a broader question about legal ethics. So I frame it in that light. This thing happened, and we are still dealing with the fallout of it, and a lot of that fallout raises questions that are actually core to this basic structure of constitutional law that we’re going to cover in class.
Erwin Chemerinsky:
Jeff, you teach both law students and undergraduates. What’s your sense, and you teach at the University of Texas, which might be a different student body than I see at Berkeley or Melissa sees at NYU?
Jeffrey Abramson:
I think we’re on the cusp of a disaster. I think we’re seeing almost a virtual collapse of the ability to teach con law as law. I want to pick up on one thing that Melissa, I think, rightly pointed out was this cynicism cuts across partisan lines. I started this semester with Marbury v. Madison, as almost all of us do. I traditionally played devil’s advocate with judicial review. I didn’t have to. Before I had gotten 20 sentences out of my mouth, the students were already asking whether judicial review, both historically and today serves any democratic purpose? I have my own barometer or test of whether things are getting better or worse. I always ask the students before the first class to read Kafka’s Parable from Before the Law, from the Trial Code Before the Law. It’s just a small story about a man from the country who believes in the law coming to the door where the law is inside and to his surprise, finding doorkeepers who say, “Well, the law is in there.”
It’s a long story about whether there is a law inside that the doorkeeper is keeping students from getting into, or whether there is nothing in there that it’s all a charade, it’s all a magic trick. They’re only doorkeepers and doorkeepers and doorkeepers. I used to get students who believed in the of law who believed that there was such a thing and that there was a difference between the law and its agents and the agents could be faithful or corrupt. I’m only 10 days into the semester, and whether they’re, to my guess, conservative or liberal, they share this vast cynicism that all there are, are doorkeepers, before we even get to substance, that there is no such thing as the law. I had to give a disclaimer, the first day that at least half of the things I’m going to teach them this semester may no longer be “in the United States Constitution” in June three weeks after we end this semester. It will be true of the Second Amendment. It’ll be true of the establishment clause. It’ll be true of freedom of religion. It’ll be true of abortion and privacy. It’ll be true of Affirmative Action, and area after area because the doorkeepers changed, the law is going to change, and whether there’s any legal reasoning to teach, frankly, I’m not sure how to handle that. It’s not just the students.
Erwin Chemerinsky:
You began by saying we’re on the verge of disaster, and you say that’s because students are questioning whether or not having judicial review is desirable, but might it be a good thing to question whether judicial review is desirable? You say the students see it all being the doorkeepers. My perception has always been that constitutional law is a function of who are the justice systems on the court is just as more apparent at this point. Should we teach them something different than that?
Jeffrey Abramson:
I’ll try to give you a brief answer or when it’s, meet you halfway. I think most of us have always been realist and understood justices come with ideologies and values and predilections, but there used to be some space between partisanship and values of that sort and a legalistic values and ways of approaching the law. For instance, you used to get conservative justices that you could make an argument to, even if they weren’t in favor of a result by seizing on their being against judicial activism and pointing out to them that if they didn’t accept a rule here, binding the police, you were going to get ad hoc adjudication, and you were going to get case-by-case supervision by the courts and more intervention.
You could try to pry from a justice who didn’t begin oral argument with your political conclusion, or your belief in criminal defense rights and seize on the way they reasoned in other cases. I’ve read something that Melissa wrote in an interview with New York Times that I think I’d like to hear more on, but it seems to be correct, which is we’re on the cusp of disaster because we haven’t quite seen this before. The Tony Court may have been worse. Dread Scott may be the worst, but at least in those cases, you had a sense that the court wasn’t packed. The doorkeepers weren’t there just to serve interest off the court. That even if you disagreed with the court, there was a kind of inherent legitimacy to the court doing its own thing. Now, I just think that’s what were on the verge of losing. The reason I said cusp of the disaster, I know this has been said so many times before, but these things are fragile. That’s what we’re going to teach about January 6th. You don’t get many chances to stave off disaster.
Erwin Chemerinsky:
Dhalia, in your perception of this, especially to the extent you have a perception of students, and also whether you think we are on the verge of disasters, just saying?
Dahlia Lithwick:
Well, first thank you for including me in this agust conversation. I think this is the conversation. We are framing it as how we teach students, but I can tell you, the in Supreme Court Press Corps is having the exact same intramural discussion of, “Look, how much of this do we start to say, the emperor has no clothes and how much do we persist in the story we’ve been telling for decades and decades, which is the court is different from the political branches and here’s why?” The last class I taught was actually with professor Melissa Murray. We taught a J term class at UVA last year, and I had a deep sense that the students were very anxious, that they didn’t want to be lied to and that they, in good ways and bad, and here’s where I would add just a little coda to what we’ve just said. There’s some utility to peeling off the veil. There’s some upside to it, and part of it is what you, Erwin, said about legal realism has always been there, and to some degree, it’s useful to just be honest.
I loved that Melissa and I, when we taught, were able to be honest, not just about the Roberts Court, the 6-3 supermajority, but very honest about we taught a class about Ruth Bader Ginsburg, and we were able to talk about her incredibly fraught legacy in terms of race and in terms of her own privilege. In other words, I think the hagiography goes in all directions and there’s some utility in being honest with students in both directions. What I would say, and I think this is just amplifying what’s been said that the reason I think we’re on the verge of catastrophe isn’t, per se, the 6-3 super majority. There have been 7-2 super majorities and 8-1 and 9-0 super majorities. I think you, Erwin, more than anyone would hasten to remind us that the court had about seven good years in there, when it wasn’t some version of a super majority, and that we have too many illusions about the Warren Court as the template for what the court has always been and will always be.
That said, I think what’s changed is that it’s not just that the veil has been ripped off for the public and that’s those 30, 40% approval ratings we’re talking about. I think the court no longer is interested in participating in the fiction that the court is different. The bargain has always been at least as long as I have been a con law student, a teacher of con law students, and an observer of the court is that the court did its level best to pretend that the court was different and that the rule of law mattered and that precedent was binding and that there was a rule for the court and a lane for the court and that mattered. You could talk a about it on the axis of judicial ethics how the justices behaved. You can talk about it on the axis of judicial language around judicial activism or around deference to the other branches, whatever axis you wanted to talk about it on, the court was part of that fiction that made it easier for the rest of us to tell that story.
So even as all of us here would hold our nose and say, “The court is different. It’s an apolitical branch. We would listen to justice Breyer talking about not being junior varsity, blah, blah, balls and strikes.” We’d hold our nose and say, “At least the court is trying to participate in the holding up of that fiction.” I think one of the things that has utterly collapsed in the last few years, and this is not a left/right comment, it’s going to sound like one is that I just don’t think the justices want to participate in that anymore. Whether it’s Amy Coney Barrett giving a speech about judicial independence at the foot of Mitch McConnell, or whether it is Justice Breyer insisting in the face of all evidence to the contrary that the court are not partisans, I just think that what we are seeing is both the cost and the benefit of everybody saying, “Oh, you know what? The emperor has no clothes,” and that’s both terrifying, and it’s also, in some ways, very refreshing.
Erwin Chemerinsky:
Yeah. Let me push back just a little bit. I wrote a law review article over 30 years ago where I said, It’s all about the values of the justices. It always has been, it always will be, there is nothing else to constitutional law.” Is this now just progressive being upset that Donald Trump won in 2016, and there’s three very conservative courts who join a court with already at least two other very conservative courts, and we’re going to lose things with really care about? “Is there more to the criticism of the court than that?
Dahlia Lithwick:
I think there’s a lot more to it than that. Of course this is going to sound like sour grapes and trust me, that’s the critique I get. When I say, “This court is like, none I have ever seen, you just don’t like the decisions.” It’s not that I just don’t like the decisions it’s that I think that there are a whole host of rules, including those ethics rules, including the rules around stare decisis, including the rules about what kinds of cases we take, what is right for review and what isn’t? All of those rules exist, right or wrong to promote the fiction that the court is different, and that the court, if you think about it through the lens of the ethics rules, Erwin, it’s that there is no appearance of impropriety. It’s not impropriety.
It’s that they are held to a standard that says, “Unlike the other branches, you have to be able to walk into the court and believe that the fix isn’t in.” The suspension of all those rules, the decision that if you look at the Dobbs argument, like maybe this is just a piece of performance art in the utter valueless of stare decisis, and that’s the discussion that was not the subtext. That was not the footnotes. That was the text. The idea that the justices will reach out and take cases that are not properly before them, the entire existence of the fight about the shadow docket, Justice Alito can say what he wants about how it’s all the press’s fault that there’s a shadow docket, but the fact that the public are upset about the shadow docket is because there is a rule that the court shows its work, and that’s its only authority is that it shows its work and that when the court doesn’t show its work, it looks like the fix is in.
So I guess I’m just trying to say there’s a whole constellation of behaviors, all of which you’re right. It’s always been about politics from the founding, let’s be honest. But it seemed to greater and lesser degrees that that wasn’t the only governing principle. The other governing principle was, and we do our level best to ensure that the American public, because we have neither the person or the sword, believes that we’re different and that’s what’s gone. I just think that when the justices themselves are not just colluding in, but leading on the proposition that, “Of course, that’s gone, it’s always been raw politics and we don’t need to adhere to precedent, and we don’t need to adhere to ethics rules, and we can do what we want when we want it, suck it America,” then what you’re going to get is not just, “Oh, my God, this is legal realism. It’s all just politics, but this is just brute force, and that’s what it looks like, and that’s different.
Erwin Chemerinsky:
Melissa, is the perception of our students just what Dahlia and Jeff described? I keep thinking about what about the conservative students who are jubilant that now their values are going to be advanced by the majority? How do we teach them if this is our perception?
Melissa Murray:
I think it’s a terrific question. I think there has always been an intuition from students that it isn’t always law, that it may be law laced with politics, that ideology may have something to do with it. How else to explain the pitch battles over every single nominee to the court that they have seen in their lifetimes? Not that has been the case throughout history, but that they’ve witnessed. So I think one of the things to recognize is that this is a group of individuals who only have a particular public perception of the court as filtered through these apical moments where the court comes into focus, and it looks very different than it did when we were students coming up. All I remember of the court as a teenager is the Thomas Hill hearings, and that was eventful to be sure, but what has come since I think every single time you have a nominee it becomes this question about personal experience as translated into some kind of ideology, and I think that can’t have escaped their notice.
I think it informs their understanding that there is something political about the court and about the justices. In this moment I think the progressive students are despondent and rightly so. I don’t think you’re going to see much that would be classified or characterized as progressive coming from this court. But even among those students who I think understand themselves to be conservatives and understand themselves to be principled in their conservatism, there is something I think that gives them pause about what they’re seeing. Maybe this goes back to Bush v Gore, where it felt like the court, the fix was in for a particular party. Maybe it’s the way in which the confirmation process has been explicitly politicized, not by the court itself, but by members of Congress.
I think even they recognize that what facilitated this particular moment was not necessarily law, but politics, and now an interpretation of law probably doesn’t feel as gratifying as it might have if it had occurred through some other function. I think when they think about the like precedent and this idea that it is sedimentary building on the past, if you want to change things, that’s fine, but it’s incremental. It’s purposeful. It’s not these wild lurches that depend on who’s making decisions. I think even they are hard pressed to explain what is happening beyond simply, “This is our worldview that we actually have the authority to instantiate, and that’s what we’re going to do while we have that authority.”
Erwin Chemerinsky:
Let me ask, and it turns out, you talked about your conservative students, as well as sure more liberal students being cynical and that’s what Melissa was just saying. What I hear from conservatives students more generally, is that what the court’s going to do now is follow the true meaning of The Constitution. That the true meaning is what the originalists intended and abortion rights aren’t part of that true meaning of the constitution. I always hear from the conservatives, “Liberals just make up what they want, but we’re really following a method of constitutional interpretation,” which leads me to leave the conservative students may be less cynical, but also how do we, as teachers, respond to that?
Jeffrey Abramson:
Well, I guess I accept half of that, Erwin, that there is this difference between students in a law school as there is in the country. But even a few years ago, it was possible to conduct a class across partisan lines and say, “I don’t care what you think about same sex-marriage. I do care what you think about federalism. I want to know whether it’s within Congress’s bailiwick to be intervening in our federal system of states to regulate their own marriages.” I think it’s not a conservative versus liberal argument in the classroom, but boy, it does seem to be slipping through my fingers this semester.
Erwin Chemerinsky:
Dahlia, let me try to look at it from a different perspective. Maybe everything that you describe in terms of the perception of students is a good thing because as lawyers, then, they’ll look to other than the Supreme Court, that maybe the lesson for all of this, if you’re a progressive is, “Don’t go to the Supreme Court to advance freedom in equality, go to well Congress maybe, state legislature, state courts really focus on the political process.” If students see that clearly, that may be a good thing rather than a bad thing, or am I missing something here, or being too Pollyannish?
Dahlia Lithwick:
No, I think that’s right. I think there is some utility in saying, “You know what, kids, you’re not at Hogwarts. You’re not learning magic, and this is not an oracular institution that you need to learn incantations. This is a political institution and what you are learning is a toolkit, and it is a toolkit that, by the way, not just is of utility in state courts and in local government and on school boards, but also it is of utility as you think about and organized litigation at the Supreme Court too, that this is about being strategic as opposed to aspirational, and that it’s really, really useful to treat this as any other exercise in you are seeking power in front of institutions that have power and these are your tools to do that.”
I think if you’re asking me choosing as between door number one, like the court is magic and oracular and the law is handed down from the mount and door number two, which is the court is partisan and political, here are the tools to do effectively the kind of advocacy work that can make headway in that system, I would think it’s always, not just descriptively still useful, but normatively better to have the blinders off, one gloss us to what Jeff said that I think is worrying to me in this kind of conversation about the rule of law and power, and I’m thinking of it through the lens of religious liberty. One of the many ways that I see the current court not colluding with the fiction that justices are different while insisting that justices are different, is this deep empathy and solicitudes for certain kinds of plaintiffs. I’m just thinking of it because of what you just heard about religious liberty, because I think that there is a form of judicial writing that we are seeing more and more and more of that is, “Oh, these poor people who want to pray during COVID and the monstrous government from a place of deep, bad faith is setting limits on who can pray, and I don’t have any empathy or solicitude for the governor, but I have deep solicitude for the religious decenter.”
We see that time and time and time again, and I think one of the things that scares me, if we’re talking about educating students, the last thing we want to tell our law students is that the person that you empathize most with is the person who is, per se, deserving of legal relief. I just think a little bit of what Jeff is describing is what I cynically call “feelings ball at the court,” where more and more and more we’re just having the justices, which just a funny thing for an institution that’s supposed to be rooted in dispassionate, bloodless legal treatment to just feels super sorry for one class of people and to have no solicitude, and not even a pretense of trying to understand the other side. so I guess what I want to say is the polarization, you all are describing amongst your students and the ways in which that is inflected with for the other side or a presumption that the other side is in bad faith, is something that the court is modeling and that is also different.
Erwin Chemerinsky:
I think it’s a great point. Melissa, I want to follow up also on more of how we should be teaching constitutional law. I suggested in talking to Dahlia, maybe what we should be teaching is the importance of looking to other than the Supreme Court or another thing comes to mind is, should be teaching students to be much more careful about what they take to the Supreme Court and what they don’t take to the Supreme Court. We probably all have experience where we talk to lawyers and say, “This is not a cert petition worth taking,” or, “Once the court takes it, is there some way of settling and getting rid of this case?” Isn’t it a good thing to be having that conversation with our students now?
Melissa Murray:
Yeah, I actually do have that conversation. I’ve always had that conversation with my students about strategies that not just advocates are deploying, but maybe even the court itself. To even take a case, you need for people they’re being strategic about how they use their authority to shape their docket, we should be considerate about that. Once they’ve accepted their docket, judicialability doctrines are not simply about procedural hurdles toward getting into federal court, they can also function as avoidance doctrines for ways that are good and bad and they should be aware of how that functions as well. So I think all of that is right. One of the things that I like to model in my class is there may be a Supreme Court that is inattentive to the issues that I may find important or that my students find important.
But that doesn’t mean that we can’t still talk about them in constitutional law. One of the things I think is really important is the whole question of what it means to be of non-marital birth in this country. A lot of con law books don’t even talk about legitimacy anymore. It’s this bygone thing when in fact there are still enormous legal impediments is associated with it and tremendous stigma associated with it. It’s not likely to ever get before the court, but I think we need to understand what we do in the classroom as reproducing in equality, too, in how we shape our courses. So I’ve made the conscious decision to cut back some of my coverage of the Commerce Clause so that I can make room to actually include discussion of the whole trajectory of illegitimacy cases.
I also talk about it when we talk about race discrimination in Brown, I talk about Cooper versus Aaron, but I also say part of the resistance to Brown was the rise of illegitimacy classifications as another way to limit Black mobility in the Civil Rights era. so just you can actually use your classroom in the way that you want to. Conservatives may call it indoctrination. I don’t think it’s indoctrination. I think it is surfacing something that we don’t see in other parts of the curriculum in a core class that almost every student will take, and at a time when 40% of American children are being born outside of marriage, we probably should be equipping our students to think about what that means in a society where the family is so core to how we organize ourselves, but what it means to be a family may be evolving and changing.
Erwin Chemerinsky:
I wonder if that fits with Dahlia saying the difficulty of the justices understanding those of different experiences than theirs., Dahlia, I thought what you were saying is very powerful that the justices see those who are like them being the victims and find it very hard to understand those who are different from them and what they suffer. I think your example of non-marital children is a good one, but are there other things we should be doing as law professors in teaching this material, or as law schools more generally knowing what all three of you have said, and that I certainly agree with in terms of the perceptions of our students?
Jeffrey Abramson:
I think just this week learned with these stories about Trump toying with the idea of having some federal agency seize voting machines, I think we see how close we came to something that would look like a military coup. I don’t think that’s an exaggeration. I wondered about what responsibility, if I think that was a real possibility, what am I teaching, if I don’t just stop and say, “We had moratorium about the Vietnam War?” Yeah, you have to build in the January 6th committee and technical issues, but maybe it was way worse than we thought.
Erwin Chemerinsky:
How do we teach how unique the events of the last year are without sounding like were against Trump? We’ve never seen anything like what occurred on January 6th. We’ve never seen anything like the attempt, to use the John Eastman memo to invalidate an election. We’ve never seen in this country’s history a candidate who lost the presidency, continuing to claim victory, let alone the insurrection on January 6th. And yet as we teach all of that, does it not sound like we’re taking a political position and whatever students we have who voted for Donald Trump would see us as just expressing sour grapes about his views. How do we teach that material?
Jeffrey Abramson:
I think you answered your own question. The evidence was overwhelming. It’s more overwhelming this week that we have narrowly escaped a presidency that was willing to scrap the Constitution of the United States. So serious discussion of 14th Amendment, Section 3 disqualification of people who participated in or incited insurrection becomes maybe an obligation of professors. It’s our time in history. We’re supposed to be on watch. The fundamental obligation we have to our students is to awaken them to things that seem to be wholly, wholly beyond politics. I don’t feel embarrassed at all to saying opposition to Donald trump is not a political view. It’s a civic obligation and it’s certainly a prosecutorial obligation.
Erwin Chemerinsky:
I’ll go ahead. With the second point, and then I’m going to ask Dahlia and Melissa, the same question about what should we be doing is law teachers in constitutional law and as law schools?
Jeffrey Abramson:
So I also teach an undergraduate course called Constitutional Principles to honor students undergraduates. I was teaching the Second Amendment case DC versus Heller yesterday, one in which for the first time they found an individual right to bear arms, the Supreme Court did. I had a really attentive student who asked a question during discussion that he noticed that each side went to history as a source of interpretations, but they went to different histories and he asked me what counts as historical evidence? He wanted to get into this question and study it further, but should he be studying history?
I felt like, “Here I have this great student who wants to ask the question about, as if this mattered, but then military coup.” I thought, “Should I send this student out to read what was said at the time of ratification debate about militias versus … ? Or should I say to him, ‘that’s not what you should be thinking about?'” I just almost lost it in class because I thought, “I’m doing my job as if I take his question seriously, but boy, it sure doesn’t feel like that’s what he should be thinking about right now.”
Melissa Murray:
So I’m, I’m teaching executive power right now, and I don’t know how you can talk about that material without referencing the current moment and what might have been. I don’t know if this is an issue of us bringing our particular proclivities or ideologies to the podium, because I think there are justices in the past who actually surface these very concerns and anxieties, and you don’t have to do the talking, they do the talking for you. So I’m thinking about Frankfurter’s Concurrence in Youngstown, this idea that we have purposely designed a constitutional structure to diffuse power through division so that each branch has something to work with. They can all do things. We can get things done, but no branch has so much power that it can be consolidated to the point of tyranny, and they talk about this.
Yes, there are emergencies that come up, the Korean War is an emergency. The prospect of a strike during the Korean War is an emergency. That doesn’t mean we need to vest the president with the authority to meet that moment because, and then I think this is where you have to call on history and get them to do the analytical work of connecting the dots, what is Felix Frankfurter so concerned about? What happened 10, 15 years before Youngstown that is surely shaping the discussion in ways that are both explicit and implicit, it’s the fact of a truly charismatic executive who consolidates authority and gets no pushback from the legislature and sees everything as an emergency, and in fact, acts as though it is an emergency consolidating power and becoming an autocrat. Once you lay that out there, you can just see in the room, all of the minds firing and they’re making the connections. “Yes, that is exactly what could happen. Yes, that might have been exactly what was happening on January 6th.” Then I haven’t said anything. I’ve said nothing about my own political views. If you want, I guess you could find it on Twitter, but I don’t have to, because everyone has been concerned about this. It’s why we have a Constitution in the first place.
Erwin Chemerinsky:
It’s a great example. Of course, Frankfurter lived through all of that. Dahlia, your thoughts on this?
Dahlia Lithwick:
I’m going to make a personal point that is maybe entirely ancillary, but maybe of some utility, and that is a couple years ago, I sat through the Brett Kavanaugh confirmation hearings. I was in the room when both he and Dr. Ford testified and I was really alarmed by the propensity of the press to cover it in two ways that I thought were really pernicious. One was like just sports, right? That it was just a really interesting football game. The other was to put this legal in perimeter on it, right. We had a sex crimes prosecutor asking the questions, therefore, this was clearly a fact-finding mission. It was neither of those things. It was to people’s lives that came to, in my view, an indeterminate conclusion. And shortly after that, I just found it increasingly difficult to walk into the U.S. Supreme Court and just write the sentence, Justice Kavanaugh, who has now been elevated without the scrutiny I think the job required.”
I wrote a piece, I think the way the story goes is, I pretended I had a cold for about a year and kept making excuses not to go into the court, and then finally explained to my editor I was just having a very hard time covering the court as an institution, because the thing we are talking about today, how do you keep teaching about this institution as a serious unbroken institution feels, to your mind, quite broken? I ended up writing a piece saying, “This is why I’m having trouble going into the court and covering it like it’s a court.” Half of my hate mail was very angry and that is what’s to be expected, and half of it was supportive and I suppose that’s what’s to be expected. But the thing that was most interesting to me was the number of people teaching con law who reached out in the days after that piece went up and said, “This is why I stopped teaching con law, because I have been having that problem in the classroom, and I’ve just decided I can’t teach it as though it’s the law and I don’t have an alternative, and so I’m just not teaching it anymore.”
That’s when I set my hair on fire, Erwin, because that’s when I said, “Well, no, you can’t stop. I can stop. The world doesn’t grind to a halt if I stop covering the court, but it sure doesn’t function if everybody who’s feeling some of the feelings, we’re all articulating just stops teaching con law, who is going to teach it?” So I think in a deep way, and I think this goes to your initial concluding question to all of us, you’re always living in this split screen of, “How much does my collusion with these systems give cover to the systems and how much utility is there in me peeling off?” We used to have this conversation about people who stayed at the Justice Department. Now we know that had, had people not stayed at the Justice Department, there would have been a coup, right? So these are almost impossible questions about how we think about institutions once we think they are possibly immediately broken. But I think, I just want to say that part of my answer to this is to just be vulnerable to it and to be really truthful with students and with people that if you think that I am an oracle, that I have all the answers, then you are falling prey to the exact same problem.
I think as a country, we have fallen to, in terms of the Supreme Court, which is there are no grownups here. I think that one of problems I certainly had with legal education when I was coming up was the absolute performance of oracular perfection from my professors. With huge respect to them, they were fantastic. But I think part of this, which is, I guess my roundabout way of saying, I think this conversation is really important. I think students need to hear that their admired con law heroes are struggling with this issue and that on any given day, you are standing there in front of a class making a choice to talk about January 6th or not, and that there are real perils to both, talking about it and not talking about it, but to just be, I think, transparent and not pretend to have all the answers is at least that was the effort I was trying to make in terms of my own thinking about covering the court. I don’t know if this is helpful, but I think for me, it’s just not to continue to participate in the fiction that you know all the stuff, because this is not helping students at all.
Erwin Chemerinsky:
It’s tremendously helpful and very powerful. All too quickly, our time for this conversation has ended, but I think that’s such a wonderful place to finish, because I think Dahlia, what you’re doing or what Melissa’s comments did and what Jeff’s comments did is focus it at the personal level, the personal choices you made, the personal choices that those at the Justice Department made, the personal choices are law students are going to have to make. Of course, what we’re focusing on too, is the personal choices that we’re making as con law teachers being in the classroom. I am so grateful to Jeffrey Abramson, Dahlia Lithwick, Melissa Murray for this thoughtful and important conversation. I only wish she had more time to continue it. I hope you enjoyed this episode of More Just, and be sure to subscribe wherever you get podcasts. Until next time, I’m Berkeley Law Dean, Erwin Chemerinsky.