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 will meet in Washington, D.C. for five morning seminars and some afternoon or evening activities. Fellows will receive housing accommodations and a $500 stipend contingent upon full participation in the course. All course materials will be provided.
Faculty
Adam J. White
Adam J. White is a senior fellow at the American Enterprise Institute, where he focuses on American constitutionalism. Concurrently, he codirects the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason University.
Adam J. White
Adam J. White is a senior fellow at the American Enterprise Institute, where he focuses on American constitutionalism, the Supreme Court, and the administrative state. Concurrently, he codirects the C. Boyden Gray Center for the Study of the Administrative State at the Antonin Scalia Law School at George Mason University.
Mr. White previously practiced constitutional and administrative law, particularly in the regulation of energy and the environment, finance, and telecommunications. He was a research fellow for Stanford University’s Hoover Institution and an adjunct fellow for the Manhattan Institute. He started his legal career as a law clerk for Judge David B. Sentelle at the US Court of Appeals for the DC Circuit.
The author of a wide range of essays, book reviews, law review articles, and book chapters, Mr. White has appeared in publications such as The Wall Street Journal, National Affairs, Commentary, The Harvard Journal of Law & Public Policy, and the Notre Dame Law Review. He is a regular contributor to the Yale Journal on Regulation’s “Notice and Comment” blog, and for many years he was one of The Weekly Standard’s primary writers on constitutional law and the Supreme Court.
Mr. White has testified before a variety of US House and US Senate committees, including the Senate Judiciary Committee; the House Judiciary Subcommittee on Regulatory Reform, Commercial, and Antitrust Law (currently known as the Subcommittee on Antitrust, Commercial, and Administrative Law); the Senate Commerce Committee; and the House Financial Services Subcommittee on Oversight and Investigations.
In 2017 he was appointed to serve on the Administrative Conference of the United States. He also serves on the boards of two nonprofit organizations: Speech First and the Land Conservation Assistance Network.
He 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?
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
- Supplemental Readings to Come: The Supreme Court’s Decision(s) in the Harvard and North Carolina Cases
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?
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?
Religious Liberty
Readings:
- Employment Division v. Smith (1990)
- From Masterpiece Cakeshop (2017) to Fulton (2020)
- Brief for Petitioners, Fulton v. Philadelphia (2020), pp. 37–52
- Brief for Respondents, Fulton v. Philadelphia (2020), pp. 47–52
- William Haun, “Religious Liberty and the Common Good” (2020)
Discussion Questions:
- In Smith, did the Court uphold precedents, or abandon them?
- Was Smith correctly decided?
- Should the Court maintain the Smith precedent, or abandon it? Why?
