Protective fencing encloses the U.S. Supreme Court building on May 24, 2022 (Chip Somodevilla/Getty Images).
Every year, the Wisconsin Law Review holds a competition to host its annual symposium. Law professors across the country submit proposals for that year’s theme.
This year’s symposium, which will be held on Oct. 28-29, addresses a matter on many people’s minds: Controlling the Supreme Court: Now and “far into the future.”
The two law professors who submitted this proposal, Eric Segall of Georgia State Law School and myself, will open the symposium with two questions. Eric will ask whether the Supreme Court is a court of law? I will ask, is there a future for American law?
On one level, the symposium is a response by some of America’s leading constitutional thinkers to the convulsions of the Court’s last term, which saw major changes in constitutional law: abortion most obviously, but also religion, guns, the environment and tribal law.
This is not another gathering of liberals bashing conservatives. Eric and I made sure the symposium reflected the rich diversity of American constitutional thought. So, the first panel asks whether the court is now out-of-control or whether instead the court is now correcting judicial excesses of the past?
The remaining panels address the confirmation process, which all agree is broken, the meaning of the apparent victory of originalism, the abandonment by the court of major precedents, and proposals to “reform” the court, which some see as destroying it as an institution.
Bringing together divergent views in this way is a hopeful act that anticipates civil and productive disagreement.
But the symposium is also raising the question of whether such democratic discourse is still possible. Meaningful debate is only possible if there is a common framework—an agreement about a common good.
But there is reason today to doubt that there is any such agreed framework. Instead, many people view their political opponents today as enemies, not fellow citizens.
This leads to a different kind of struggle over the court. You can hear this difference in the subtitle of the symposium—controlling the court “far into the future.”
The subtitle is a quote from Sen. Pat Toomey, R-Pa., who said he voted against the nomination of then-Judge Ketanji Brown Jackson to the Supreme Court because he did not know how she might approach cases “far into the future.”
This insistence on controlling the court for all time is something new in America and it is shared today by both sides fighting over the direction of the court.
Prior generations of Americans tried to control the court over particular issues in a limited timeframe.
The reason that seeking unlimited control of the future would not have occurred to the combatants in past legal fights is that the classic conception of law was that over time law moves toward reason and truth. That conception of law shares the view of Dr. Martin Luther King, Jr., that the arc of the moral universe, though long, bends toward justice, including law.
This confidence rooted in a religious orientation that saw God as the Lord of history. It was this confidence in ultimately right answers to legal questions that formed the foundation of the rule of law as something beyond mere human manipulation.
The crisis in American law today is a loss of that confidence as society has become more secular in its assumptions. Both sides today sometimes sound like law is nothing but an unending struggle for power. As one law professor put it bluntly, there is no court of history.
The future of American law depends on whether it proves possible to have a believable rule of law after the Death of God.
In my contribution to the symposium, I point to areas of current American consensus over previously controversial issues—racial equality, the liberation of women from purely domestic restraint, and the injustice of criminalizing same-sex relations—as evidence that the classic view of law as tending toward justice is still true.
There is a court of history after all, even if God is absent from the tribunal. Justice retains its power to define the future.
If we can bring ourselves to accept hope in the future as realistic, we can create a new kind of reasoned harmony in our debates in law and in the larger issues of American public life. Certainly, we will disagree with each other vociferously today. But we will be united in the faith that tomorrow our debates will be resolved in a fair and just way.
Yes, American law has a future. The constitutional project is not exhausted. It is not over.
It is not an easy thing to build a secular civilization. Never before has any society created a legal system without the authority of some kind of god. So, it is not surprising that American law is having a hard time reinterpreting itself for a genuinely secular era.
But the beauty and regularity of the universe have not gone away. Nor have the lessons of the past. We can still draw on these realities in working for progress toward a more peaceful, compassionate and just future.
Years ago, the Canadian theologian Bernard Lonergan challenged an increasingly skeptical culture to ask the question, is the universe on our side? His answer was yes. That can be our answer as well.
In that spirit, I am hoping the symposium will not degenerate into political cacophony but will promote mutual understanding and healing.
The Rev. Dr. Martin Luther King always saw today’s opponent as tomorrow’s ally, not as an unremitting enemy. We must do the same.
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