The Supreme Court isn’t making it easy to be a law professor these days.
After overturning the 40-year-old Chevron deference last week, the justices threw law curricula for another major loop on Monday with their earth-shaking ruling on presidential immunity — all this just two years after Roe v. Wade was struck down after 50 years on the books.
Law school professors have been meeting to discuss the forthcoming changes to their courses, trying to get their heads around the new legal landscape the conservative-leaning court is creating.
“Administrative law goes through some periods where change is glacial, if at all, and other periods when it’s extremely rapid. The period around the New Deal is a very rapid change, the Nixon administration and immediately afterwards was a period of rapid change and this is now a period of very rapid change,” said David Super, a professor at Georgetown Law. “So if you were to compare a syllabus from three years ago, four years ago, with one from next year, I think you’d see not just different cases, but different topics being discussed.”
The Supreme Court ruled presidents have broad immunity from prosecution when they are engaging in official acts of the office, giving a major win to former President Trump in the federal criminal case regarding Jan. 6, 2021 and his efforts to stay in office.
“It’s really out of keeping with many, many of the prior cases. It’s also out of keeping with the line of cases regarding presidential immunity in which the court has been really clear that presidents are not above the law, but this decision says, in important ways, that they are,” said Claire Finkelstein, professor of law and philosophy at the University of Pennsylvania.
“And so, it’s going to be hard to know how to teach this, to know how to teach this to students, because it really requires us to rethink and reframe what we’ve been teaching them all along,” she added.
And that rewrite-the-books ruling came just day after the court struck down Chevron, which allowed judges to rely on government agencies when an ambiguous law is sued based on interpretation. Judges will now have to use their own best interpretation of the law when deciding a case, making it much easier for regulations to be overturned.
“We do not call into question prior cases that relied on the Chevron framework,” Chief Justice John Roberts wrote. “The holdings of those cases that specific agency actions are lawful — including the Clean Air Act holding of Chevron itself — are still subject to statutory stare decisis despite our change in interpretive methodology.”
Law professors say they are lucky such rulings typically happen over the summer as it gives them time to converse with peers about how to teach them in the upcoming school year.
“It takes us a while to process the opinion, then we talk a lot about it with our colleagues to try to figure out whether the opinion is actually going to be as consequential as we think it is, and then whether it’s the kind of thing that needs to be in an introductory course, in which case you really have to think hard about how it fits into the curriculum, or whether it’s something that’s for a more advanced class, in which case you might be able to sneak it in under a rubric like contemporary developments or something like that,” said Noah Rosenblum, and assistant professor of law at New York University.
In the coming years, experts say, textbooks will be changed, and the lower courts will help narrow the scope of how new case law will be used.
“We’re in a period of rapid constitutional change, and that means that we don’t know where they’re headed,” said Sam Erman, professor at the University of Michigan Law School.
Depending on their areas of expertise, some professors are used to constant change in the law, but even among those specialties, the past few years could prove unprecedented.
“It’s a conservative super majority that’s building out a new vision of constitutional law, and we’re watching that unfold,” Erman said. “And so I also have to decide what topics to cover,” he added, as previous subjects that didn’t appear quite as interesting or relevant are “going to become a big deal, and we have to spend time on it.”
Professors say it’s par for the course for attorneys to have to deal with ever-shifting laws. And sometimes it’s easy to see which way the wind is blowing, such as when conservatives chipped away at Roe v. Wade over the years before it was overturned fully in 2022.
But they acknowledge that their students, particularly those preparing for the bar exam, can also be thrown when precedent-changing decisions are dropped.
“For law schools that really have to worry whether their students are going to pass the bar, having constitutional law be a moving target can create challenges, because you might teach it to them in year one, and then essentially in year four or the end of year three, they’re taking the bar exam,” Erman said. “And if a lot has changed since they learned constitutional law, then they both have to learn new material to pass the bar, and they have to unlearn old material.”
