Professor’s Paper Explores ‘Radical Constitutional Change’

The U.S. Supreme Court is undergoing a revolution — and it’s happened before, says Professor Saikrishna Prakash of the University of Virginia School of Law in a new paper.

“Radical Constitutional Change,” co-authored with Harvard University professor Cass R. Sunstein, examines how and why such shifts occur — and why one is happening now under Chief Justice John Roberts. They explore how top-down approaches from “legal elites” and bottom-up pressures from the public play a role in such change, with the Supreme Court embracing new doctrines and discarding once-settled principles.

Prakash is the James Monroe Distinguished Professor of Law and the Albert Clark Tate, Jr., Professor of Law. He teaches Constitutional Law, Foreign Relations Law and Presidential Powers at the Law School, and is a senior fellow at UVA’s Miller Center. He is the author of two books, “The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers” and “Imperial from the Beginning: The Constitution of the Original Executive.” He recently discussed findings from the new paper.

What inspired you and Cass Sunstein to write this paper?

We’ve seen a lot of momentous opinions coming from the Roberts court in recent years, and we’ve witnessed varying reactions to those opinions. Some of the reactions suggested a level of surprise that reflects a certain unfamiliarity with how the court has radically changed course in the past. That got us thinking about constitutional theories of interpretation and radical change, and then also reactions to radical change and how people’s discussions about the Constitution have varied across time.

What would you consider a “radical constitutional change”?

The paper makes it clear that the court’s constantly changing its doctrines and the branches are constantly changing their practices, and most changes in isolation aren’t radical. But if there are wholesale changes in the doctrine, in practices and in the methodology, and they occur in short order, it’s fair to say that there has been a radical change.

I don’t know if there’s a situation where you could just say “this one change” is a radical change. It’s typically multiple numbers of changes over a period of time. The New Deal was a radical constitutional change. The repudiation of Lochner, when the Supreme Court struck down New York’s maximum hours law for bakers under the idea of freedom of contract, was a radical constitutional change.

In the modern era, I think it’s the court’s jurisprudence with respect to substantive due process, particularly its repudiation of Roe and its essential repudiation of affirmative action. I think that’s what led us to conclude that the court’s engaged in a project of radical constitutional reformation.

Do you think that legal theories are fueling change, or calls for radical change are fueling new legal theories?

It’s a little bit of both, I would suspect. Sometimes theories drive change, as when judges wedded to some existing theory reach results that reflect what they believe is a fair and honest application of the abstract theory. That leads them to do things that they don’t have strong feelings for or a strong attachment to, but they do them in service of the theory.

Other times, people desire legal change and adopt or create a theory to justify the change they seek. The paper does suggest that sometimes people choose a theory in part because of the set of outcomes the theory is thought to generate. If you want radical change, wouldn’t you propose and adopt a theory that generated the change you desire?

How do you see the public and then the law responding to these radical changes?

The public is not as concerned with legal theories — they’re mostly focused on outcomes. Quite often, at least when the courts are deciding cases, some portion of the public likes the change and some portion of the public does not. Quite often, the court doesn’t engage in radical constitutional change unless there’s some sentiment in the public for it.

As we discuss in the paper, sometimes change just emanates solely from the top, the elites, and they change doctrines and change practices in radical ways that do not reflect any pressure from the public. So something like the nuances of judicial review, the unitary executive, nuances of habeas corpus, the nuances of criminal procedure — it’s not obvious that a significant portion of the public is pushing for any of these changes, but the court or the political branches foster that change, nonetheless.

Could you give some examples of some approaches that the paper analyzed about top-down approaches?

The court’s embrace of the unitary executive theory is not a bottom-up groundswell for more presidential control of the bureaucracy. I don’t think most people follow the issue or care about it. I think the [Earl] Warren court’s criminal procedure revolution was entirely top-down and not bottom-up. I don’t believe people were hankering for more criminal justice procedural reforms in the 1950s, ’60s and ’70s. Instead, I think it reflected a view among a certain portion of the legal bar and the court that criminal procedure needed to be updated to better protect the rights of defendants.

Those are two fairly prominent examples. I think other movements have deeper connections to the populace, such as abortion rights or opposition to abortion, or affirmative action or opposition to it. Those issues resonate with people more and therefore are more susceptible to interest group formation.

Do you see any radical constitutional changes on the horizon?

If the court stays as it is currently composed for a half-decade or more, I do suspect there’ll be more changes in doctrines that will be quite consequential. A lot of federal and state affirmative action programs seem problematic under the court’s Harvard case from last term, and lower courts are beginning to strike racial classifications in the affirmative action context down. They’re striking them down using the Harvard case as a template. I think it’ll be much harder to make a substantive due process claim given what Justice [Samuel] Alito said in Dobbs, and that just may bar further innovation in the realm of subsequent due process. In practice this means that it will be harder for people to advance new constitutional rights before the federal courts.