Reflections on the Revolution

The news has been full of analysis these days about the radical shift on the Supreme Court, and how it has been decades in the making. I don’t know that I have a lot to add, but I do have a different perspective, because I have lived through it.

I graduated from law school in 1970, when the Supreme Court was at its most liberal, inclined to view the Constitution as a living document, one whose meaning was subject to change to accord with changed circumstances. When we studied constitutional law, it was with the sense that the arc of court decisions was toward greater equality, increased freedom, a growing emphasis on individual rights, and an active role for government in achieving those ends. Individual cases might go one way or the other, but there was a sense that the Court would build on what had gone before.

That view was naive. Even in the heady days of the 1970s, when we thought that as new lawyers we might able to help steer the country toward solving the many problems it confronted, there were plenty of people who thought the new direction the Court had been taking was fundamentally wrong. Patiently, they bided their time, cultivated allies, and marshalled new arguments. As the decades rolled by, new Court justices, at least those appointed under Republicans, came around to that point of view. The doctrine of originalism began to command allegiance: the idea that the Constitution should be interpreted in light of the intent of its original framers, changing circumstances be damned. Even liberals starting to dance to that tune, though of course it led them to different results. Elena Kagan, one of the small band of liberals still on the court today, told the Senate during her confirmation hearings in 2010: “We are all originalists now.”

When I look back, what my classmates and I lacked was a sense of history. The liberal current in Supreme Court decisions realistically dated back only to 1937, when the Court, facing extreme political pressure, did an about-face and began approving New Deal legislation that it had been striking down only a year earlier. 1937 was only 30 years before I entered law school. Yet I, and many of my fellow classmates, I’m sure, never doubted that the trends we studied in our ConLaw casebooks would continue; that on the most fundamental issues, there was no turning back.

But 30 years is not that long—something it’s much easier for me to recognize looking fifty years later. I had professors in law school who had been teaching law before the great revolution in Supreme Court doctrine of the 1930s. Looking back now, it is much easier to see that the moment in which we were living in the 1970s, though it may have stretched over decades, was still only a moment, and that it would sooner or later give way a very different moment.

Now we are at the start of another revolution. The old approaches, the old understanding, never really disappeared. They bubbled below the surface in the dissents of more conservative members of the Court, and in the outraged reactions to certain court decisions, especially those that seemed to elevate a secular way of life over religious concerns (for more on this, see a recent book by David Sehat, This Earthly Frame). William Faulkner famously wrote, “The past is never dead. It’s not even past.” We are witnessing today the rising up of a past that has broken out of the dungeon into which it had been cast, and is now spearheading an open revolt. I see this now, though I could not imagine it then. To be young is perhaps in part to ignore the past. To age is recognize its force.

What arc will the Court’s decisions follow now? Just a few days ago, a GOP member of the House, Lauren Boebert, remarked that she was “tired of this separation of church and state junk” (referring to a fundamental principle long thought to be enshrined in the Bill of Rights). Going even further, she also said, “The church is supposed to direct the government. The government is not supposed to direct the church.” For now, her remarks seem beyond the pale; one renegade Republican likened them to a call for a Christian Taliban. But look ahead ten years, or twenty—who knows? Understandings that we took for granted when I was in law school—and that generations of Americans have come to rely on—may well be discarded. The ability of the government to act to address the needs of the time may be radically restricted. The guarantees of freedom of religion as they were understood for decades may be tested.

We are at the start of a different cycle in the time of this country, and none of us can say where we will go, or how quickly, before the cycle takes another turn.