The Constitution, The Courts, and Conservatism
Explore the debates within conservative legal thought on the courts and the Constitution.
Precedent, or stare decisis, is fundamental to our constitutional system. Alexander Hamilton urged in Federalist No. 78 that “to avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents.” But U.S. judges must be governed first and foremost by the written Constitution. A Hamiltonian respect for both “rules and precedents” becomes more complicated when old precedents conflict with judges’ reading of the Constitution.
The U.S. Supreme Court confronts such a moment, as a conservative majority applies an originalist methodology different from the dominant jurisprudence of a prior generation. In this weeklong, residential program, fellows will consider landmark decisions that could be overturned by the Court and their implications for American politics. Led by legal and policy expert Adam J. White, the program will also feature guest lectures from Supreme Court advocates who will bring their practical experience to bear on key constitutional questions—from precedent’s place in judicial decision-making to judicial legitimacy and public opinion, and the Court’s counter-majoritarian role in a democracy.
Image: Victoria Pickering, Protesting at the Supreme Court, via Flickr
Adam White on the conservative legal movement
This course is part of our Constitutional Studies Program. Fellows should expect to spend the morning in seminar; afternoons and some evenings will be devoted to guest speaker sessions and other class activities. All fellows receive residential accommodations and a $500 stipend to offset travel and living expenses.
Faculty
Adam J. White
Adam J. White is the Laurence H. Silberman Chair in Constitutional Governance and senior fellow at the American Enterprise Institute, where he focuses on the Supreme Court and the administrative state. Concurrently, he codirects the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
Adam J. White
Adam J. White is the Laurence H. Silberman Chair in Constitutional Governance and senior fellow at the American Enterprise Institute, where he focuses on the Supreme Court and the administrative state. Concurrently, he codirects the Antonin Scalia Law School’s C. Boyden Gray Center for the Study of the Administrative State.
Mr. White practiced constitutional and administrative law, particularly in the regulation of energy and financial markets. He started his legal career as a law clerk for Judge David B. Sentelle at the US Court of Appeals for the DC Circuit.
Mr. White has testified often before Congress, including before the Senate’s Committees on the Judiciary; Commerce, Science, and Transportation; and Homeland Security and Governmental Affairs and before the House’s Judiciary and Financial Services Committees. In 2018, the Senate Committee on the Judiciary called him to testify in Brett Kavanaugh’s Supreme Court confirmation hearings to advise senators on Kavanaugh’s approach to administrative law.
In 2021, he served on the Presidential Commission on the Supreme Court of the United States, where he criticized “Court packing” and other efforts to restructure the Supreme Court. In 2017, he was appointed to serve on the Administrative Conference of the United States. He also serves on the leadership council for the American Bar Association’s Administrative Law and Regulatory Practice Section, which he will chair in 2023–24. Before joining AEI, he was a research fellow at Stanford University’s Hoover Institution and an adjunct fellow at the Manhattan Institute.
Mr. White has a JD from Harvard Law School and a bachelor of business administration from the College of Business at the University of Iowa.
Preview the Syllabus by Week/Session
Founding Principles: Precedent & America’s Constitutional Judiciary
Readings:
- Abraham Lincoln, Inaugural Address (1861)
- Alexander Hamilton, Federalist 78 (1788)
- James Madison, Federalist 37 (1788)
- Thomas Lee, “Stare Decisis in Historical Perspective” (1999), pp. 659–66
- Edmund Burke, Two Excerpts on Precedent (1790)
- Alexis de Tocqueville, Democracy in America (1835) (Harvey C. Mansfield & Delba Winthrop eds., 2000), pp. 93–99 & 251–58
Discussion Questions:
- How bound are we by judicial precedents, according to Lincoln?
- What is the proper relationship between written laws and judicial precedents, per Hamilton?
- What is the relationship between stare decisis and the judge’s (or lawyer’s) temperament?
Precedents on Reconsidering Precedent
Readings:
- Oliver Wendell Holmes, Jr., Excerpt from The Common Law (1881)
- Anthony Lewis, Excerpt from “A Talk With Warren on Crime, the Court, the Country” (1969)
- Arthur Goldberg, Equal Justice: The Warren Era of the Supreme Court (1971), pp. 67–97
- Amy Coney Barrett, “Originalism and Stare Decisis” (2017), pp. 1921–33
- William Baude, “Precedent and Discretion” (2019)
- Kimberly Strawbridge Robinson, “Disregarding Precedent Can Harm Judicial Legitimacy, Kagan Says” (2022)
- Ariane de Vogue, “’Wrong things can be changed’: Justice Sotomayor speaks on disillusionment,” CNN Politics, March 29, 2023
Discussion Questions:
- How did the Warren Court grapple with prior precedents?
- Can constitutional “originalism” accommodate precedent? Should it?
- What is the relationship between judicial precedent and judicial legitimacy?
Dobbs & Substantive Due Process
Readings:
- Pierce v. Society of Sisters (1925)
- Griswold v. Connecticut (1965) & Roe v. Wade (1973)
- Planned Parenthood v. Casey (1992)
- Dobbs v. Jackson Women’s Health (2022)
Discussion Questions:
- What is the relationship between Pierce, Griswold, and Roe?
- In Casey, did the Court uphold Roe? And if so, why?
- In Dobbs, why did the Court overturn Roe? Did it need to?
- In his Dobbs concurrence, what other precedents would Justice Thomas reconsider? Why?
Harvard, North Carolina, & Affirmative Action
Readings:
- Brief for Petitioners in the Students for Fair Admissions Cases (2022), pp. 1–12, 47–71
- Brief for the United States in the Students for Fair Admissions Cases (2022), pp. 4–31
- Students for Fair Admissions v. Harvard (2023)
Discussion Questions:
- In reviewing the constitutionality of Harvard’s and North Carolina’s admissions programs, what is the most relevant Supreme Court precedent?
- What is the most significant precedent?
- Which side is more committed to precedent—the parties challenging the universities’ policies, or the defenders?
Text & Tradition: Decisions & Debates
Readings:
- New York State Rifle & Pistol Association v. Bruen (2022)
- Fulton v. City of Philadelphia (2021)
- Emily Bazelon, “How ‘History and Tradition’ Rulings Are Changing American Law,” New York Times (2023)
- William Haun, “Tradition-Based Originalism and the Supreme Court,” National Affairs (2022)
