The Supreme Court’s two decades of constitutional change

Randy Barnett and I have started a new series on SCOTUSBlog which charts the evolution of constitutional over the past two decades. These changes largely coincide with the five editions of our constitutional casebook.

Here is the introduction:

Lawyers tend to internalize the constitutional law that existed when they attended law school. Consider a lawyer who took the course in the spring of 2005, a few months before the Rehnquist court adjourned for the last time. That lawyer learned that the Constitution protected a right to abortion, that a university could consider an applicant’s race to assemble a diverse class, that courts identified an establishment of religion by applying what is known as the Lemon test, and that Congress could protect the members of an independent agency like the Federal Trade Commission from removal by the president. None of these four propositions accurately state the law today. That lawyer probably also learned nothing about the Second Amendment, which the court had not interpreted since United States v. Miller in 1939. Yet since District of Columbia v. Heller in 2008, the court has decided six major Second Amendment cases.

We have followed these changes from an unusual vantage point. Our casebook, “Constitutional Law: Cases in Context,” has gone through five editions: the first in 2008, the second in 2013, the third in 2017 (when Blackman joined), the fourth in 2021, and the fifth, which will be published this December. Casebook editors work within a fixed page budget. For every case we add, we must shorten or remove another, so each edition records a judgment about which cases a student must now read. In this new series, we will discuss what has changed over the past two decades on the court. This first installment explains how much of the course has stayed the same. In the installments that follow, we take up each area of constitutional law in turn.

The conclusion is especially important:

Each generation of law students sees changes in how the Supreme Court interprets the Constitution, shaped by the conflicts of the day. Often these shifts happen slowly and even imperceptibly. Other changes happen radically in a short span. The justices control the shift. In both types of cases, the justices may not appreciate the consequences of one decision until the next case comes along.

People tend to think the times they are living in are the most unprecedented and unpredictable, but that is rarely the case. As described above, the Supreme Court decided cases during the nation’s formation, conflicts over slavery, the Civil War, Reconstruction, the Progressive Era, World War I, the Great Depression, and World War II. When teaching constitutional law, it is important to keep the big picture in mind and avoid getting bogged down in the minutiae of the day.

If I may, some recent commentary about SCOTUSBlog is misguided. The same site publishes Erwin Chemerinsky and Steve Calabresi. I view that balance as progress. And journalism is not free. Virtually every site I visit now has some sort of paywall. I ultimately decided to not charge for my content, but I could only do so because I am a tenured law professor with a steady salary. SCOTUSBlog has not paid me for my contributions, but I am still happy to have my work shared on that valuable platform.