The Supreme Court hasn’t made it easy to be a law professor these days.
After overturning the 40-year-old Chevron decision last week, the Supreme Court on Monday upended law curricula once again with a shocking decision on presidential immunity — all this just two years after striking down the 50-year-old Roe v. Wade decision.
Law school professors have been meeting to discuss upcoming changes to their courses as they try to make sense of the new legal environment that conservative-leaning courts are creating.
“Administrative law has periods of little change and periods of extremely rapid change. We saw very rapid change during the New Deal. We saw rapid change during the Nixon administration and immediately after. And we’re now in a period of very rapid change,” says David Super, a professor at Georgetown Law School. “So if you compare the curriculum from three or four years ago to next year’s curriculum, I think you’ll see not only different cases, but different topics being discussed.”
The Supreme Court ruled that the president has broad immunity from prosecution while performing the official duties of his office, dealing a major victory to former President Trump in a federal criminal case related to Jan. 6, 2021, and his efforts to remain in office.
“This is completely at odds with a lot of previous precedent, and also in a series of cases on presidential immunity, the Supreme Court has been very clear that the president is not above the law, but this decision shows that in important ways the president is above the law,” said Claire Finkelstein, a professor of law and philosophy at the University of Pennsylvania.
“So it’s going to be difficult to know how to teach this, how to teach this to students, because it’s going to require us to rethink and reframe what we’ve been teaching our whole lives,” she added.
And the ruling on the legal changes came just one day after the court threw out a Chevron decision that allowed judges to turn to government agencies when ambiguous laws are challenged based on interpretation. Judges will now have to interpret the law as they see fit when deciding cases, making it much easier to overturn regulations.
“We do not question past cases that have relied on the Chevron framework,” Chief Justice John Roberts wrote. “Precedents holding that certain agency actions are lawful, including our Clean Air Act ruling against Chevron itself, remain subject to statutory precedential binding despite changes in our interpretation methods.”
Law professors say they are fortunate that these decisions usually come in the summer, giving them time to discuss with their peers how to teach the next academic year.
“It takes a while to formulate an opinion, and then you have to talk it through with your colleagues and really think about whether it’s actually going to be as significant as we think it is, and whether it’s the kind of thing you want for an introductory course, in which case how does it fit into the curriculum? Or is it something more for an advanced class, in which case you might be able to sneak it in under something like contemporary trends,” said Noah Rosenblum, an assistant professor at New York University School of Law.
Experts say textbooks will be revised in the coming years to help lower courts narrow the scope of new case law.
“We’re in a period of rapid constitutional change, which means we don’t know where they’re going to go,” said Sam Ehrman, a professor at the University of Michigan Law School.
Depending on their field, professors may be accustomed to constant change in the law, but even in those disciplines, the past few years can be unprecedented.
“A supermajority of conservatives are crafting a new vision for the Constitution, and we’re watching that unfold,” Ellman said. “So we have to decide what topics we’re going to cover,” he added. Topics that previously didn’t seem all that interesting or relevant “are going to be big issues, and we’re going to have to spend time on them.”
Professors say it’s only natural that lawyers have to deal with constantly changing laws, and sometimes it’s easy to see which way the winds are blowing, like when conservatives chipped away at Roe v. Wade over the years before it was completely overturned in 2022.
But they acknowledge that if a precedent-changing ruling is struck down, it could upset students, especially those preparing for the bar exam.
“For law schools that really should be concerned about whether their students pass the bar exam, having constitutional law as a moving objective can create challenges, because you teach constitutional law in your first year and then you have the bar exam at the end of your fourth or third year,” Ehrman said. “And if a lot has changed since students learned constitutional law, students have to learn new material and unlearn old material in order to pass the bar exam.”
