"How the Hell To Teach Constitutional Law in 2025: Twenty Questions and No Answers."

Written by Eric Segall, at Dorf on Law.

I don't teach anymore, so I don't need to answer question like this, but I'd actually love the opportunity to work this out, and I'll bet there are a lot of younger law school graduates who have the energy and dedication and brains to figure out how to teach conlaw these days. Maybe those of you who are worn out should consider retiring. Oddly enough, when I decided to retire, it was the fall of 2016, and I was sure that Hillary Clinton was about win the election and that after she appoints the successor to Justice Scalia, with 5 strong liberals on the Supreme Court, constitutional law was going to become very boring.

Much of the bulk of Segall's 20 questions is a longstanding problem in conlaw: There's too much material to cover everything or even to cover anything with enough depth. But the argument that we've got a special problem right now is summed up in the first 2 questions:

"The dogma lives loudly within you" — Dianne Feinstein's amazing challenge to 7th Circuit nominee Amy Coney Barrett.

I'm writing about this topic for the first time because there's a NYT op-ed by lawprofs Geoffrey R. Stone and Eric J. Segall that I anticipate will get closer to what I'd like to say than what I've seen so far. At the Judiciary Committee hearing on the nomination of Amy Coney Barrett, Dianne Feinstein said something related to religion — Barrett is Catholic — that was phrased very carefully:

“Whatever a religion is, it has its own dogma. The law is totally different. And I think in your case, professor, when you read your speeches, the conclusion one draws is that the dogma lives loudly within you, and that’s of concern when you come to big issues that large numbers of people have fought for for years in this country.”

That got a big reaction, including the charge that it violates the constitutional demand that "no religious test shall ever be required as a qualification to any office or public trust under the United States."

Is "dogma" a dog whistle, expressive of anti-Catholic bias or does it aptly characterize a person with fixed beliefs that interfere with understanding law in a properly judicial way? As Stone and Segal put it:

Senator Feinstein was not suggesting that Catholics shouldn’t be judges. She was asking whether someone of deep faith and who had previously openly (and in our opinion eloquently) written about the relationship between judging and faith could cast aside her deeply held views when judging. Had Ms. Barrett said that her faith would in fact deeply influence her judging, would the question have been deemed so wrong? We think not.

Likewise, if senators had asked Justice Ruth Bader Ginsburg during her confirmation hearing if her long history litigating claims of gender discrimination would influence her judging, or if they had asked Chief Justice John Roberts whether his time working in the Bush administration would affect his decision making, no one would have blinked.

Judges regularly decide difficult legal issues in which the law at issue is unclear. In those open spaces, a judge’s personal values and life experiences will inevitably play a role in the outcome of the case. Given that Ms. Barrett had previously explored the relationship between her deeply held religious views and judging, Ms. Feinstein acted well within the bounds of fair questioning to probe deeply on this question.

The main problem with this kind of questioning is that it is so routine and so routinely answered. We're being asked to rely on the decisions that will come from the mind of this nominee. That mind must be tested, and it can't be tested enough. There are all sorts of biases and disabilities within any human mind, and the hearings can do very little to expose the limitations of an intelligent, well-prepared nominee.

To create a special immune, untestable zone is absurd.

A nominee with a mind entirely devoted to religion and intending to use her position as a judge to further the principles of her religion should be voted down just like a candidate who revealed that he'd go by "what decision in a case was most likely to advance the cause of socialism."

I'd like to think that a religious person has a strong moral core that would preclude that kind of dishonesty, but we're not required to give religious nominees a pass and presume they're more honest than nominees who are not religious devotees. That would be religious discrimination!

Richard Posner (with Eric Segall) publishes a NYT op-ed titled "Justice Scalia’s Majoritarian Theocracy."

That sounds inflammatory!

The short essay cites some cases in which Justice Scalia, by not recognizing claims of constitutional right, leaves some policy to be determined by the processes of democracy. Since the Americans who participate in our democracy often think through political issues in minds imbued with religion, the results of the majoritarian process could — if you want to stretch and be inflammatory — be called a theocracy.

To be fair, Posner and Segall only say that Justice Scalia's "political ideal verges on majoritarian theocracy."

It's the NYT that's responsible for the headline "Justice Scalia’s Majoritarian Theocracy."

"Maybe there are good legal arguments why Kagan need not recuse herself..."

"... but there is no good reason that she shouldn't at least come forward and publicly explain her decision."

Not doing so suggests that there is something deeply political (and maybe, like Bush vs. Gore, even something partisan) going on, and that possibility could negatively infect what many of us on the left hope to be Supreme Court affirmation of the constitutional validity of the Affordable Care Act.

"So far it appears that only Republicans and conservatives want Kagan to recuse herself from hearing the [Obamacare] case..."

"... while liberals and Democrats take the opposing view. I have been a liberal constitutional law professor for more than 20 years, and a loyal Democrat. I believe the Affordable Care Act is constitutional and that it would be truly unfortunate for the country (and the party) if the court strikes it down. I also recognize that there is a much greater chance of the court erroneously striking down the PPACA if Kagan recuses herself. That said, I believe that as a matter of both principle and law, Kagan should not hear the case."

Eric Segall in Slate.