The New Republic recently printed an essay devoted to one of the many, many less tragic but nonetheless unfortunate consequences of the decisions issued this term by our rogue Supreme Court–the fact that the Court has upended the lives of students studying for the bar exam.
I know whereof the author speaks. A couple of weeks before the essay appeared, I had lunch with a good friend and his daughter, who had just graduated from the University of Michigan law school and was studying for the bar exam. She had been an excellent student, but was now stymied about how to answer questions about what she’d been taught were basic principles of American jurisprudence. What should she do in the wake of the Court’s string of radical departures from what she’d been taught was settled law?
Snark that I am, I suggested starting every answer with “Until this year, the law was…” But of course, that assumes the exam consists largely of essay questions.
As the author of the article in the New Republic put it
Picture the scene: It’s the summer after I graduated from law school and a day that ends in y, which means I’m currently hunched over a workbook, attempting to answer practice questions for the multistate bar exam. Such cramming for the bar is a universal rite of passage in the legal field—one that every lawyer in America remembers going through. But right now, law school graduates across the country are experiencing the ordeal a little differently. Because this year, a lot of the laws we are trying so hard to memorize are, as of just a few weeks ago, no longer actually the law.
The author shared a multiple-choice question that has undoubtedly been on several such exams, and then described the dilemma: of the three choices, “B” was correct. At least it should be correct. Except now, not so fast…
Or, well, “B” used to be the right answer. It was the right answer when we graduated from law school at the end of May. It was the right answer through most of June, as we studied the elements of substantive due process—the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference, like the rights to personal autonomy, bodily integrity, self-dignity, and self-determination. For decades, these interests formed the outline of a constitutionally protected right to privacy, whose framework we’ve spent the summer copying onto flashcards and trying to recount in practice essays.
But this substantive due process right to privacy was just dealt a body blow by the Supreme Court’s ruling in Dobbs v. Jackson that the U.S. Constitution does not confer a right to abortion.
After enumerating several of this session’s other dramatic “U turns” to constitutional jurisprudence, he writes:
And the hits keep on coming: Next there’s a question on the “case or controversy” requirement laid out under Article III of the Constitution, stipulating that federal courts only have the power to resolve legal questions arising out of an actual dispute between real parties. That’s been a basic principle of judicial review since 1793, and yet I know that the multiple-choice option I mark for correctly stating this rule completely contradicts the Supreme Court’s disastrous climate decision in West Virginia v. EPA—a case over an environmental regulation that never took effect, no longer exists, and never created any real dispute between actual parties. Then I drop my pencil and put my head in my hands….
In order to practice law, every newly licensed attorney in the year 2022 has to take an exam testing their grasp of legal principles that are no longer legal and laws that are no longer the law. That an unelected panel of ideological extremists could change so many critically important pieces of America’s legal architecture overnight—radically remaking our laws on abortion, separation of church and state, climate change, the rights of criminal defendants, Native American sovereignty, gun control, the capacity of the administrative state to keep us safe, and more—all with zero input from or accountability to the American people, demonstrates how completely unmoored this court is from the principles of democratic governance.
It isn’t only students cramming for the Bar Exam who find themselves suddenly adrift. Pretty much every lawyer I know is gobsmacked..
Me too. I recently collaborated with Women4Change Indiana on a series of civic education videos meant to explain the operation of the U.S. Bill of Rights. The Court’s ahistorical and deeply dishonest departures from what I knew as settled legal principles has made several of those videos inaccurate.
I encourage you to click through and read this very poignant essay--and the author’s very pointed criticisms of the judicial extremists who are decimating the rule of law.
The average cost of a law degree is $50,000 per year at a private school and $28,000 per year in state school. Did this experience for Supreme Court justices just conveniently evaporate from thinking of consequences. After paying tuition and countless hours of study, how much more do they pay for bar exam preparation to catch up quickly on all new provisions of the law? Ever wonder then why only high end wealth can afford a lawyer earning enough to payoff student debt!
I’ve argued this with my liberal attorney friends for years. I will ask them if it is not originalism (or strict constructionism/original intent or whatever you want to label the judicial restraint model) what approach do you believe judges should use that would limit their power?
I get crickets in return. They will never answer the question. They are great at pointing out legitimate criticism of the originalism model, but they can never articulate a theory of jurisprudence that they believe judges should use instead. Instead they are result oriented. If they like the policies activist judges implement through interpreting the constitution and the law, the judge is acting correctly! If they dislike the policies, it’s bad judging.
I’m just not convinced that law students have been thrown for a loop by recent court decisions. If you compare the two, Dobbs lays out a much better coherent and rational framework than Roe. It’s not even close. Same too with the climate decision. The Court said EPA was acting outside of the authority granted to it by Congress. Congress can simply expand that authority by passing a new law. Even the new gun case tried to decide the issue within a logical framework and was actually much, much more limited than critics apparently realize.
When the Republicans in the Senate let the Federalist Society to pack the federal courts and SCOTUS with nut cases, we end up with crazy courts and crazy laws. It all seems to be going as they planned. Mitch has done his work. We will pay the price.
https://en.wikipedia.org/wiki/Federalist_Society
Time to vote blue no matter who. From dog catcher to president.
I agree with Paul this morning – ” If they like the policies activist judges implement through interpreting the constitution and the law, the judge is acting correctly! If they dislike the policies, it’s bad judging.”
That is because he is criticizing activist judges for the Democratic Party. SCOTUS should not be an activist court. It should apply the law.
That said, just because we are a secular society does not mean we cannot act under a code of ethics. SCOTUS has not acted ethically in my lifetime on this planet. Scalia was a hack lawyer at best. Same thing as Justice Thomas and his wife. Hacks and shills.
Certainly, Paul will agree with that assessment, or he is just another party hack himself. 😉
Norris, I graduated law school in 1987. Tuition at IU School of Law at Indianapolis (I refuse to call it the McKinney Law School) is now 10 times what it was when I went to school. That’s far above the rate of inflation that happened between 1987 and 2022.
Everybody thinks lawyers are making big salaries, but in fact maybe 10% are making over $100K. ( And many of those are people working at the big law firms where attorneys are putting in 60 hour weeks.) Many lawyer are making much less than that. I know plenty of attorneys pulling in $40,000 or less a year without few benefits. Public sector attorney salaries are now the most sought after jobs among new law school graduates. Government attorney jobs have actually gone up a lot more than private sector jobs, which have been stagnant for decades, and those jobs offer good benefits and short hours.
Oh, and those who get a salary in the legal profession are the lucky ones. Unemployment is rampant in the legal profession. About 50% of my 1987 law school classmates have long ago left the practice of law.
Sorry I had to vent about this subject.
On the other issue, I’m not convinced that law students now have to learn a whole bunch of new stuff because of recent court decisions. Law schools don’t operate like that. You don’t learn a lot of substantive stuff in law school. During none of my classes, including two semesters of constitutional law, did we study Roe. Rather law schools are about teaching you how to “think like a lawyer.” Most lay people are shocked when I tell them that most law professors have never practiced law a day in their lives. Imagine people in medical school being taught by academics instead of doctors. That’s in fact what happens in law school. We weren’t taught by lawyers. How we teach law students in this country is insane. But that’s another subject.
Ted Cruz, Antonin Scalia, Clarence Thomas and a host of other Republican lawyers in government prove the point that having a law degree doesn’t make that person intelligent. The bottom of the barrel finds Eastman, Giulliani, Powell and Jenna Ellis. The whole barrel stinks of incompetence and publicity grabbing, not legal thinking.
We are blessed on this blog with an intelligent lawyer, Sheila Kennedy. Imagine her serving on the SCOTUS instead of the right-wing knuckleheads and liars.
That’s the rub. Ethics, morality, facts and truth – all practiced with a law degree. Imagine that. Be still my beating heart.
“I’m just not convinced that law students have been thrown for a loop by recent court decisions.”
Paul’s quote above was one to be expected from anyone who supports the current conservative supermajority in SCOTUS; the fact that the Trump faction overloaded SCOTUS by swearing to uphold prior SCOTUS decisions as set laws. They were specifically asked regarding overturning Roe vs. Wade; all three swore under oath they considered that as set law; as with Republicans in House and Senate, they rejected their sworn Oath of Office on each civil and human right which came before them to overturn prior set laws by SCOTUS. Regarding Roe vs. Wade; it isn’t that the situation regarding abortion has changed, the arguments of case law have remained the same but decisions are now in the hands of the conservative religious based Judicial majority. High Crimes and Misdemeanor medical decisions based on women’s medical conditions by men with little, if any, knowledge of the cost in lives lost by mothers and fetuses prior to their viability to survive outside the mother’s uterus.
Those who decide who passes and who fails the Bar Exams will be in the hands of the same Justice System which comprises the current conservative supermajority Supreme Court.
As for those low-salaried lawyers Paul spoke of; try finding one to accept a relatively minor legal matter while living on barely above federal poverty level income.
My position has long been that the Constitution is an outline of what makes for a decent system of governance. It’s sad that so many people today don’t understand that the system was designed to create laws that uphold basic principles. Since January 2017, we have seen that things we accepted as “settled” simply by virtue of their mention in the Constitution need the power of law to enforce those principles. We have so much more information available today than they did in 1788. Somehow we’ve lost the ability to collate and use that information.
did some one here miss louis powell,nixon,and the start of our generational downturn. since the pulpit of the court is now upside down on so called justice(this time around), i remember how other case arguments in that court didnt seem to jive with the subject presented and wrung out between lawyers and justices. obviously the argument was thought out,before the subject of that argument was clerked in. (thanks dobbs may you and your team of lawyers and money rot in hell)
when roberts gets to pick and choose to his liking,or he could have remanded back to the lower court..if we are to believe that choosing a justice wasnt influenced by the person who was picked by the congress.(meetings,background,letters,lies etc) and the intital selection of. it seems the parties are more responsable for this whole let down in American jurisprudence. lets face it,we elected those who con us into believeing they are the whole picture now. we have little to no say anymore,were just dumbasses whining to them..look at (sorry,but sometimes its right) polls about any subject. would collins(r) no vote made a diffrence or would the party who selected that hack just brush off another? the fact of the argument got to the court is a con in itself. roberts picked the case, we picked bush,who picked roberts. (and without a vote made him chief justice)either way we have long been screwing ourselves for self governace. its time to call,out the assholes. R,Reich has a piece out today, getting rid of manchin..maybe its time to enact a recall in our nation,and make that law… do the job or get out. we as the majority should rule not the shammans of two parties intenet to distroy our lives..
take 350 degree asphault oil,stand next to the plant that mixes it,then the people on the road crew standing next to it and spread it as someone who rolls it out,on top of a hot machine,and its 100 plus today,,nice day to be fixin your roads. at least we got some infrastructure $ as the profiteers take a bigger chunk now..seems theres no control on that issue..
geee gotta get to work,, full time 67, but hell, at least im healthy..
“Ethics, morality, facts and truth,” all take a back seat to the Federalist/Koch agenda of the GOPIGGIES!
I knew nothing about Scalia’s history as a lawyer until seeing Paul’s comment, and am not surprised by it.
Was Scalia ever anything but a Federalist fellow-traveler?
I’d previously tried to give Cruz the benefit of the doubt, expecting that “somewhere” he had to have some
functioning brain cells, in order to graduate from the schools he is said to have attended, but….
It’s clearly not “…Just the Bar Exam,” but an examination of whether, or not, the country still fits into the
definition of a Democracy!
Oh, yes, I’d wondered whether, or not, Sheila, you might mention, today, AG Rokita’s possibly being sued by the
physician who provided the 10 year old with her abortion, but now that must be an issue for another day, perhaps.
Vernon – if Sheila were to serve on the Supreme Court she would make decisions based upon intelligent logical /critical thinking and fairness and would completely rebuff any special interest groups that offer personal gain to her. Sheila and RBG seem to have been cut from the same cloth.
Stare decisis, stand by things decided, is, or was, an adaption to the real value added by the Federal Legislative Branch and the Constitution which were to be the lighthouse guiding the ship of state on a steady course in changeable political winds. Conservative justices overturned it in changeable political winds and justified that by telling the world that the reason was that they were just more competent people than those who decided things previously.
What will the next wind shift bring? Even more competent people?
The result of this departure from the wisdom of those who designed our government is that SCOTUS is now, apparently, a wing of the Legislative Branch, blowing in the political winds, in whatever direction they change to.
Conservatives like to think that they honor the wisdom of the founders by thinking like them.
Nothing could be further from the truth.
I’m really feeling ancient with today’s topic. I graduated from law school (1955) during a relatively benign Supreme Court era, like before the now overruled Roe. I paid a tuition of $4.25 per semester hour and passed the bar the first time. I had occasion to belong to several state and federal district courts, the 7th and 9th Circuits and the Supreme Court, resigning from the latter after Bush v. Gore with a letter to their clerk in which I wrote that I did not wish to belong to the bar of a court that itself acted unconstitutionally.
Sheila would make an excellent Supreme Court justice, and with four opportunities upcoming, all of us contributors to her blog should band together, go visit Joe and tell him so.
Paul Ogden’s points deserve some brief responses.
First, it is not necessary to accept the premise that a theory of constitutional interpretation necessarily must “limit judicial power.” With that canard out of the way, there are well-developed dynamic theories of constitutional interpretation that stand as counterpoints to originalism. Two of the best works are David Strauss’s “Common Law Institutional Interpretation” and Barry Friedman’s work on “dialogic” constitutional interpretation.
As for being results-oriented, Gorsuch’s opinion in the Kennedy football prayer case sets a new low for factual and intellectual dishonesty in the service of transforming law in the justice’s preferred direction.
I’m a law prof, but I practiced law with a global law firm, including an argument at the Supreme Court, before I went into teaching. My Con Law students, in addition to learning how to think like lawyers, read dozens of cases and learn serious bodies of constitutional doctrine. And I can’t possibly imagine a con law class that didn’t address Roe. (When I taught it, even some of my most progressive students acknowledged its weaknesses in legal reasoning.)
A mentor of mine told me if you want to be paid the big bucks, figure it out. No complaining that it is raining, your feet hurt, the dog ate your homework, the answer was not in the book, ……..
As respects midstream changes, Mike Tyson said your game plan always works until the first time you get punched in the face. Then you are in for the fight of your life.
Quit complaining and figure it out. If you are sitting for the bar exam (meaning you passed the LSAT, graduated from law school) your brain is one of the top in the country. If you can’t figure it out, maybe you should not be an attorney.
Jan obviously didn’t understand Sheila’s blog. The years of law school classes – THAT WAS THEN vs questions on the Bar Exam – THIS IS NOW.
SCOTUS has changed the laws to fit their political and religious definitions in what is, considering the age of this country, virtually overnight during Trump’s four years, twice impeached, one term presidency. Let’s hope there are enough viable laws remaining to keep him at one term.
Sorry I am late commenting, but I am a few time zones off of eastern. Paul, I will have to disagree on a few points. First, if Congress thought the EPA was out of bounds, they had years to pass measures limiting the scope of the EPA, and with the way EPA ruling making works, there were years to preview the possible actions they intended to take and if they disagreed, take action. The EPA decision was JUDICIAL ACTIVISM at it worst, where there were no damaged parties to even have standing to sue.
In addition, with the abortion issue, all I can tell is that an “originalist” is somebody that wants to insert their original version of history. Read the amicus brief provided by the several professional historical groups and you will see that SCOTUS just made up their garbage “or originalist” version of the history of abortion.
Sheila is right on the mark today.
I will also say that “originalists” seem to feel very free to ignore constitutional amendments 11+. Even though they passed through the rigors of the amendment process, it feels like they ignore them like they never happened.