The “One Big Question” Shaping Legal Culture

Last week, I had the honor of giving the keynote address at the National Conference of Constitutional Law Scholars, which was hosted by the University of Arizona James E. Rogers College of Law and its Rehnquist Center.

My topic was “the One Big Question” currently shaping legal culture. 

I’ve now posted my prepared remarks. Here’s the abstract I wrote for SSRN:

Today, legal culture is shaped by One Big Question: should courts, particularly the US Supreme Court, have a lot of power? This question is affecting the legal views variously maintained by conservatives and liberals, not just in court but also in the academy. 

Perhaps most fundamentally, the right (because it is newly in power) is becoming less formalist, and the left more so. In addition, the legal left and right are repositioning themselves, or trading places, with respect to topics like interpretive method, deference to agencies, and standing. 

This dynamic helps to reveal the underlying structure of the law. And greater appreciation of that underlying structure can benefit legal culture by fostering respect, humility, and toleration.

Here’s an excerpt from the address:

[I]t turns out that many legal issues are downstream of the One Big Question. Both the Left and the Right are accordingly shifting positions in light of their new answers to that question. 

Let me give you a few examples, all centering on Justices Scalia and Kagan.

First, textualism. When Justice Scalia was an insurgent force in the federal judiciary, being a textualist meant shackling the purposive judicial activism characteristic of the 1970s. Today, by contrast, Justice Kagan often invokes textualism to take the Supreme Court’s conservative majority to task. Meanwhile, conservative legal intellectuals are increasing talking about moving “beyond textualism.” Unwritten law is now hot in conservative legal circles. 

Second, agency deference. Justice Scalia supported judicial deference to agencies, not just under Chevron but also under principles like Auer deference. But that process started when conservatives were a minority force on the judiciary and President Carter’s appointees led the DC Circuit. Today, with conservatives in command of the courts, Scalia’s successors have turned sharply against agency deference. Meanwhile Justice Kagan fights to preserve agency deference in cases like Kisor and, this term, in Relentless and Loper Bright. 

Finally, standing. Scalia strove to tighten up standing as a way to curb liberal judicial activity. Profligate standing rules in Establishment Clause cases were perhaps his central example, as they facilitated what Scalia viewed as overly vigilant restrictions on religiosity. But conservative litigants now want access to the federal courts. They know that, under new case law, they can receive relief or exemptions from many regulations. So it is now the Left who has a special interest in enforcing or tightening up justiciability principles. Conservatives, by contrast, are tempted to fling open the courthouse doors. 

A single Supreme Court case recently illustrated all three of these trends. In the student loan case Biden v. Nebraska, several states argued that the U.S. Secretary of Education lacked statutory authority to cancel certain student debt. Three questions arose. What did the statute mean? What attitude should the Court take toward the Secretary’s exercise of administrative authority? And, should the states have standing to challenge the loan forgiveness measure—even though student debt relief had no direct effect on the states’ treasuries?

The Court ended up divided 6 to 3. Far from deferring to the Secretary, all six conservative justices invoked the atextual “major questions doctrine” to give narrow meaning to the statutory text. The conservatives also found standing on the theory that a loan service provider with no objection to the loan forgiveness plan was really part of a state; therefore, the servicer’s lost business gave the state standing to challenge the entire nationwide loan forgiveness program.

By contrast, all three liberal justices invoked textualism, exhibited respect bordering on deference toward the executive agency’s work, and rejected standing as too attenuated and artificial to justify nationwide relief. In other words, the liberal justices were much more textualist, far more deferential to the executive branch, and markedly stricter when it came to standing than their conservative colleagues. This alignment of votes and views represents an almost complete inversion of the 1980s.

A similar dynamic is visible in many other legal debates. …

I got a lot of helpful feedback—and some criticism!—from participants at the Conference. I hope to build on these themes, so added comments are most welcome.