In a trend that’s escalating both numerically and qualitatively, the ability to teach constitutional law effectively is being called into question in light of the U.S. Supreme Court’s prevailing doctrine of originalism and what some observe as a “hard-right supermajority.” According to a recent report, this court development is said to be overturning established precedent at an accelerated rate – a reality that’s proving challenging for constitutional law professors.
The ‘velocity of change’, as some academics have termed it, leaves them ‘depleted’, having to constantly revise and adapt their curriculum to keep pace with the evolving jurisprudence. It’s no longer a matter of updating a few landmark cases each semester. Instead, the challenge has metastasized into a situation where the fundamental tenets that underpin many modules studied by law students are in flux.
While the SCOTUS’s role as a policy maker has long been a subject of debate within legal and academic circles, these recent developments are seen as a departure from the gradualism traditionally associated with the Court. This no longer allows for the easy incorporation of new decisions into the syllabi. A case in point is Texas’ near-total abortion ban, S.B.8, seen by many as a direct challenge to Roe v. Wade.
In addition, the Court’s approach of making such sweeping pronouncements outside of the ordinary briefing, argument, and opinion process is viewed by many legal scholars as unprecedented. This shadow docket, as it is commonly referred to, has surprised many, not just in how it’s being used, but also the frequency at which it’s being used.
Indeed, the situation is lighting a fresh debate over the depth and speed of shifts in constitutional interpretation, and more broadly – the teaching of law under an increasingly conservative Supreme Court. The demands of being a constitutional law professor in these times are significant – but only serve to underline the importance of their role in the broader fabric of the legal profession.