Further Thoughts on the Ely Challenge
October 19, 2021 | Tags: constitution, Supreme Court
Last week I asked for modern examples of those who had done what John Hart Ely did with respect to Roe:
Here is a (1) professor at a top law school writing (2) an article in a top law journal, that (3) strongly criticized the legality of a recent Supreme Court decision while (4) noting that he strongly endorsed the decision as a matter of policy, and did not think it would cause any bad consequences.
Is there a good example of somebody doing this in recent years?
I've been very heartened by all of the responses I've seen, both on and off line. There are lots of examples of constitutional law scholars whose policy views do not perfectly match their legal views, and everybody appears to agree it is important for this to be true.
Even so, it has been hard to find a more modern article that has all four points mentioned above. Four examples that came close, though failing one or another prong, were Jeremy Waldron's dissent from Obergefell, Judge Wilkinson's criticism of Heller, Henry Monaghan's defense of Bush v. Gore, and Robert Pushaw's criticism of Bush v. Gore. (I'm also flattered by those who suggested the piece that Eugene and I wrote a few years ago criticizing Janus v. AFSCME, though I don't remember us announcing our policy views in that piece so I don't think it qualifies either.)
So why is that? If most constitutional scholars have such mismatches between law and policy, why don't we see more pieces in this genre?
One reason, as Orin Kerr pointed out on Twitter, is that we may just see fewer articles of the form "recent Supreme Court decision is wrong," of any sort. Maybe the field, or the top law journals, are getting less doctrinal. Or at least the doctrinal pieces are expected to talk about a bunch of cases together, not engaged in detailed critique of a single case.
Another point is that the Ely challenge calls not just for any policy/law mismatch, but a mismatch where the legal argument you disagree with is sufficiently plausible that a majority of the Supreme Court signed off on it. Even if one thinks it would be desirable for the Constitution to create a constitutional right to marijuana possession, a population-weighted Senate, or what have you, there is no chance the Supreme Court will say so, and so there is no chance to write an article virtuously criticizing such a decision.
These two points then bring us to the final reason, which is that I suspect that many law professors who do harbor such legal misgivings about a particular decision are just unlikely to want to focus on it quite so much. For instance, even if you think most strong judicial review is legally inappropriate (and so disagree with Heller, Roe, Citizens United, and Obergefell, say)—you may not want to write an article that focuses on only one of those decisions, and especially not on the one that you think actually improves public policy.
All of this is understandable. You have to be a particular kind of person to be willing to spend your time picking this kind of fight. That said, I do think the academy could use some more of this kind of person.