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Eric Segall on Justices Making Up Law
Michael Ramsey

At Dorf on Law, Eric Segall, Teaching Constitutional Law in a World Where the Justices Just Make Up the Law.  From the introduction:

I am often asked by other law professors how I teach constitutional law given my hyper-critical views about the Supreme Court. I respond by saying that: 1) the subject is on the bar exam so of course I emphasize and make clear the black letter "law;" 2) the class is wonderful for helping students improve their critical thinking; 3) if you are going to practice constitutional law you need to learn how to talk the talk of formalism and legal rules; and 4) I disclose my priors to students on the first day of class so they have an idea what the course is going to be like.

Nevertheless, I understand why I get this question all the time. As Professor Christopher Sprigman recently said ..., he tried teaching constitutional law but stopped "because my students were unhappy when I would point out how the Supreme Court was making it up, often incoherently. Students want to believe in what is in reality a bad discipline." Numerous other professors have complained about the same frustration to me over the years.

Professor Sprigman's charge that the Justices are just "making it up" needs to be unpacked just a bit because many Supreme Court experts likely disagree or perhaps phrase what the Justices do less insultingly. But Sprigman is exactly right. In most constitutional law cases, there is no helpful text or history and the Justices (and lower courts) spend most of their time discussing prior Supreme Court decisions (where there was also no helpful text or history).

I will support Sprigman's descriptive account with 10 representative examples that show how judge-made constitutional law is little more than the aggregate of the Justices' value preferences or, on some occasions, the results of bargaining among the Justices to reach a five-vote result that makes little sense. I could provide 100 examples if space and the readers' patience allowed. I did provide many more examples in my first book. After the examples, I explain why judge-made constitutional law is different from judge-made common law and then close with a few more thoughts about teaching.

The examples are, unfortunately for the Court, pretty effective.

Though Professor Segall disagrees, one might think textualist originalism is a partial solution.  Judges will still have strong temptations to continue making up the law, but if the legal culture gives them a (somewhat) objective standard to meet, they'll be better at resisting the temptation.  Alternatively, if the legal culture embraces judges making up the law, then they will make even more of it up, with the consequence of an increasingly politicized judiciary.