Print

Disfavored Supreme Court Precedent in the Lower Federal Courts

There has been significant debate in recent years about the stare decisis effect of Supreme Court decisions, prompted in large part by the overturning of Roe v. Wade and, more recently, by the overturning of Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. Almost all of this debate has concerned whether the Court should adhere to its own decisions, a matter of “horizontal” stare decisis. But potentially even more significant is the “vertical” effect of Supreme Court precedent on the lower courts, which handle almost all of the federal judicial business. If the Supreme Court expressly overturns a precedent, the lower courts will of course stop following that precedent. But what happens when the Court simply suggests in some way that the precedent is in disfavor? This Article considers that question from both empirical and normative perspectives, drawing on case studies of three doctrines that lost favor on the Court: the Lemon test for Establishment Clause claims, Bivens actions, and Chevron deference. Based on this analysis, we develop what we term a “decisional authority model,” pursuant to which the lower courts should consider some disfavoring signals but not others when determining the weight to be given to a Supreme Court precedent. We provide a taxonomy of potential signals and offer guidance to lower courts on how to respond to these signals. We also highlight the trade-offs between disfavoring and overturning precedent.

Introduction

Almost everyone agrees that the lower federal courts must follow Supreme Court decisions. But what happens when the Supreme Court itself chips away at or begins ignoring a precedent without overruling it? Although the past few terms have led scholars to focus on outright overruling, that is not the only way in which the Court can undermine or cast doubt upon its past decisions. In areas ranging from civil rights to administrative law, the Court has used various methods to put its prior rulings on seemingly thin ice.

One illustration is the Lemon test for Establishment Clause claims, which required a consideration of the purpose and effect of government action and whether the government had become too entangled with religion.1 1.See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971).Show More In the decades after the Court established that test in 1971, the doctrine was roundly criticized by numerous Justices and ignored in a number of decisions, yet never expressly overruled.2 2.See infra Section III.A.Show More Then, in 2022, Justice Gorsuch’s opinion for the Court in Kennedy v. Bremerton School District declared that the Lemon test had “long ago” been “abandoned”—without explaining precisely when or how such abandonment had occurred.3 3.142 S. Ct. 2407, 2427–28 (2022). The dissenters understood Kennedy as the first official overruling of the Lemon test. See id. at 2434, 2447, 2449 (Sotomayor, J., dissenting).Show More The implication was that the Justices had “abandoned” Lemon by either repeatedly denouncing or failing to apply the precedent (or both).

There are many other examples. One is the Court’s decision (also from 1971) in Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, which allowed private plaintiffs to bring damages claims against federal officials for constitutional violations.4 4.See 403 U.S. 388, 395–97 (1971).Show More Although the Court has never overruled Bivens, it has rejected every Bivens claim it has considered since 1980 and, in recent years, has emphasized that the remedy is “disfavored.”5 5.See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); infra Section III.B.Show More

Another illustration is the long-standing Chevron doctrine concerning judicial deference to administrative agencies.6 6.See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844–45, 865 (1984).Show More Over the past decade, despite deciding a number of cases involving agency interpretations of statutes, the Court often declined even to cite Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., let alone rely on it, and some Justices openly called for the Court to overturn it.7 7.See infra Section III.C.Show More When it finally did so in June 2024, the Court described Chevron as a “crumbling precedent[]” and colorfully observed that “all that remains of Chevron is a decaying husk with bold pretensions.”8 8.Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2252, 2272 (2024).Show More

In these examples, the Supreme Court has “disfavored” its own precedent—that is, the Court has suggested that the decision should be given less weight than what would have seemed appropriate when the decision was first issued. Through this definition of disfavoring precedent, we mean to encompass what other scholars have variously called “stealth overruling,” “narrowing,” and “obstructing” precedent, as well as confining a precedent to its particular factual setting.9 9.See, e.g., Rachel Bayefsky, Judicial Institutionalism, 109 Cornell L. Rev. 1297, 1305 (2024) (arguing that “it can be institutionally beneficial for judges” to engage in “stealth overruling”); Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1, 4–5 (2010) (criticizing “stealth overruling”); Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 Va. L. Rev. 865, 872 (2019) (criticizing the approach of confining a precedent to its facts); Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861, 1865–66 (2014) [hereinafter Re, Narrowing in the Court] (defending “narrowing”); Bill Watson, Obstructing Precedent, 119 Nw. U. L. Rev. 259, 263–64 (2024) (offering a limited defense of “obstructing” precedent).Show More Most examinations of this phenomenon have focused on whether, and under what circumstances, the Supreme Court may legitimately disfavor its own precedents, which is an important question of horizontal stare decisis. But our focus is different. In this Article, we consider empirical and normative questions surrounding vertical stare decisis—in particular, how the lower courts can and should respond to disfavoring, and how the Supreme Court can and should guide the lower courts in their responses.

When the Supreme Court disfavors a precedent, what happens in the lower federal courts, which do almost all of the federal judicial business? Do they treat a disfavored precedent as fully operative? As diminished but still in effect? As abandoned? How should they treat such precedents? These questions have become even more pressing as statements by concurring and dissenting Justices seem increasingly to be directed at the lower courts.10 10.For recent examples, see Labrador v. Poe, 144 S. Ct. 921, 927 (2024) (Gorsuch, J., concurring in the grant of stay, joined by Thomas & Alito, JJ.) (“Lower courts would be wise to take heed.”); United States v. Texas, 143 S. Ct. 1964, 1977 (2023) (Gorsuch, J., concurring in the judgment, joined by Thomas & Barrett, JJ.) (suggesting that “lower courts should just leave that idea [of special solicitude for state standing] on the shelf in future” cases).Show More

This Article aims to tackle these (and related) questions. Our analysis has empirical as well as theoretical and normative components. With some notable exceptions, work by legal scholars on the relationship between the Supreme Court and the lower federal courts has tended to focus on conceptual issues about how the judicial system should operate.11 11.See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev.817, 821–22 (1994) [hereinafter Caminker, Inferior Courts]; Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 6–7 (1994) [hereinafter Caminker, Precedent and Prediction]; Tara Leigh Grove, Sacrificing Legitimacy in a Hierarchical Judiciary, 121 Colum. L. Rev. 1555, 1563 (2021) [hereinafter Grove, Legitimacy]; Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 669 (2012); Richard M. Re, Narrowing Supreme Court Precedent From Below, 104 Geo. L.J. 921, 927 (2016) [hereinafter Re, Narrowing From Below]; Thomas P. Schmidt, Judicial Minimalism in the Lower Courts, 108 Va. L. Rev. 829, 837–39 (2022).Show More This is valuable work, but any analysis of whether the system of precedent is working the way that it should—that is, whether there is an actual problem that needs correcting—requires an understanding of how it is in fact operating, which requires some empirical study.

Accordingly, we gathered and analyzed data on federal courts of appeals cases involving the three legal doctrines mentioned above: the Lemon test for Establishment Clause claims; Bivens actions; and Chevron deference. In each area, the Court issued a major decision, then appeared to back away from that precedent in subsequent rulings.12 12.See infra Part III (describing these doctrinal changes).Show More To get a sense of how the courts of appeals have responded over time to the Supreme Court’s apparent disavowal of its precedent, we coded and analyzed a random sample of federal court of appeals decisions in these three areas.13 13.We describe in Part III our coding methodology for each doctrinal area.Show More We also qualitatively reviewed the decisions in order to get a more in-depth understanding of what the courts were doing.

This empirical information helps us better frame the theoretical and normative questions surrounding the judicial hierarchy. On the theoretical side, the existing perspectives seem to fall into one of two camps. Some scholars have claimed that a lower federal court should make a “prediction” about how the current Supreme Court might rule in a case and act accordingly.14 14.See infra Section II.B.Show More Other commentary disputes that view and suggests that lower federal courts should treat a past Supreme Court precedent as “authoritative,”15 15.We borrow the “authority” and “prediction” terms from Richard Re. See Re, Narrowing From Below, supra note 11, at 940. Evan Caminker has used the terms “precedent” and “proxy” models to embody the same basic distinction. See Caminker, Precedent and Prediction, supra note 11, at 4–6.Show More without speculating about what the current Court might do.16 16.See infra Section II.B.Show More That is, this commentary argues for an authority model rather than a prediction model.

As we will show, the existing models do not capture the complexity of proper lower court adherence to Supreme Court precedent. With rare exceptions, lower federal courts do not seek to predict how the current Supreme Court might rule in a case—an effort that would both undermine the status of existing decisions as sources of law and be fraught with the potential for error. That is, lower courts generally follow an authority model.

But the authority model has thus far been ill-defined. Some declarations from the Supreme Court suggest that lower courts should treat an earlier decision as binding, despite later decisions that indicate that it is in disfavor.17 17.See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (reaffirming that if “a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))).Show More On this view, lower court judges should focus only on the original meaning of the decision and ignore subsequent developments. But such an approach neither accords with lower court practice nor makes sense as a normative matter. Instead, under any viable authority model, lower courts should focus on a broader array of Supreme Court materials. Yet neither the Court nor academic commentary has identified what properly falls (and does not fall) into that broader array.

This Article offers a different understanding of vertical precedent, which we call a “decisional authority” model. Our model is based on two sets of normative goals. First, the model aims to promote the rule of law values that are typically associated with vertical stare decisis, including predictability, consistency, and judicial legitimacy. Second, as under any authority model, our model is designed to ensure that lower courts treat Supreme Court decisions as “the law,” even if there are reasons to believe that this law might change.

To serve these goals, it is important to provide more analytical clarity on vertical precedent. So we offer a taxonomy of five potential signals that might indicate that a precedent is in disfavor: (1) disparaging statements in subsequent opinions; (2) decisions that distinguish or narrow an earlier decision; (3) failure to cite a precedent; (4) decisions in related areas that seem inconsistent with the earlier precedent; and (5) methodological shifts that seem to undermine the foundations of a precedent. We argue that, under a proper authority model, not every disfavoring signal from the Justices is of equal value.

Which of these signals count? Under our decisional authority model, lower federal courts should rely only on the first and second categories, and only to the extent that the Supreme Court has criticized, distinguished, or narrowed its precedent in binding decisions. By contrast, lower courts should not rely at all on the third, fourth, or fifth categories—the failure to cite a precedent, changes in other areas of law, or methodological shifts. Supreme Court silence, as well as changes in methodology or other areas of law, provide uncertain and unreliable information about the legal status of a past precedent. Nor should lower courts rely on the first category, to the extent that the disparaging statements come only from plurality, concurring, or dissenting opinions. A subset of Justices, we contend, should not be able to undermine a past decision of the Supreme Court.

Under our approach, lower courts consider different factors than the Court itself in deciding how to treat a Supreme Court precedent. Because the Court has the authority to overturn or modify its own precedents, the Court can consider, for example, whether a past decision is erroneous, but that is not a consideration open to the lower federal courts. Relatedly, the Court may take into account a variety of signals about the status of a past precedent, including its own failure to cite a decision, as well as disparaging comments in separate opinions, methodological shifts, or changes in other areas of its doctrine. These options are not, we argue, available to the lower courts.

Our decisional authority model is more nuanced than prior accounts and offers needed guidance to the lower federal courts. As noted, our empirical research suggests that lower courts generally do seek to treat Supreme Court decisions as authoritative, rather than engaging in mere prediction. But we find that there is some confusion in the lower courts as to, for example, how to treat plurality or separate opinions that attack an earlier decision, or what to do with Supreme Court silence or methodological shifts. Our normative analysis provides guidance on which types of Supreme Court signals should matter in a scheme of vertical precedent.

This project has implications not only for the proper role of the lower federal courts but also for that of the Supreme Court. Many scholars have asserted that the Court has a leading role in overseeing how the lower courts interpret and apply federal law.18 18.For examples, see infra notes 28–32 and accompanying text.Show More To the extent that one accepts that view, how can the Court best perform that role? One might assume that, if the Supreme Court aims to undermine a precedent, it should expressly overrule that precedent, rather than signal that the precedent is disfavored. Indeed, some Justices have argued as much.19 19.See, e.g., Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 636–37 (2007) (Scalia, J., concurring in the judgment) (calling for the overruling of Flast v. Cohen, 392 U.S. 83 (1968), rather than “beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive”); infra Part III (noting calls to overrule other doctrines).Show More We argue, however, that the picture is more complex. The Supreme Court may properly signal that a precedent is disfavored without overruling it, but only when it acts through binding decisions. Neither judicial silence nor disparaging statements in separate opinions should be enough to signal that a precedent has been “abandoned.”

These questions are crucially important today. Although we focus on three issue areas, similar questions arise with respect to the effect of precedent concerning many other questions of federal law that are currently the subject of considerable debate, such as qualified immunity,20 20.See, e.g., Mack v. Yost, 63 F.4th 211, 226 & n.12 (3d Cir. 2023) (noting that “the textual and policy-based underpinnings of qualified immunity have generated debate in recent years,” but also observing that “whether the doctrine should continue in its current form . . . is not within [the lower courts’] purview”).Show More presidential removal of executive officials,21 21.At the time this Article went to press, the Court had not yet overturned its precedent allowing for congressional restrictions on removal, but it had narrowly interpreted that precedent, and some Justices had called for its reversal. See, e.g., Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2211–12 (2020) (Thomas, J., concurring in part and dissenting in part, joined by Gorsuch, J.) (arguing for overruling Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and claiming that the Court has already “repudiated almost every aspect” of that decision). The Court has also stayed district court rulings that relied on Humphrey’s Executor to prohibit President Trump from removing members of various federal agencies, including the National Labor Relations Board (“NLRB”) and the Merit Systems Protection Board (“MSPB”). See Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025). In September 2025, the Court finally granted certiorari to decide whether to overturn Humphrey’s Executor. See Trump v. Slaughter, Nos. 25A264, 25-332, 2025 WL 2692050, at *1 (U.S. Sept. 22, 2025).Show More congressional delegations of authority to the executive branch,22 22.Compare Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2105 (2004) (noting that, despite the Supreme Court’s unwillingness to enforce the nondelegation doctrine up to that point, “lower courts at irregular intervals persist in invalidating federal legislation on nondelegation grounds, resulting in a continuing trickle of cases reaching the Supreme Court”), with Am. Inst. for Int’l Steel, Inc. v. United States, 806 F. App’x 982, 990 (Fed. Cir. 2020) (“We will not project an overruling of the delegation-doctrine standard . . . .”).Show More and Article III standing.23 23.That is true as to both state standing and private party standing. See infra Section II.A. Similar issues also arise in the context of the political question doctrine, see Curtis A. Bradley & Eric A. Posner, The Real Political Question Doctrine, 75 Stan. L. Rev.1031, 1034 (2023) (discussing how the doctrine has had a vibrant life in the lower courts, even after the Supreme Court has been reluctant to apply the doctrine), and the Seventh Amendment, see Samuel L. Bray, Equity, Law, and the Seventh Amendment, 100 Tex. L. Rev. 467, 478–82 (2022).Show More Accordingly, our theoretical analysis should help guide both the Supreme Court and the lower federal judiciary in approaching disfavored precedent across a host of issue areas. We also hope to spur additional empirical study of the relationship between the Supreme Court and the lower federal courts.

Our analysis proceeds as follows. Part I describes the theories and values that underlie a scheme of vertical precedent. Part II explains the concept of “disfavored precedent” and describes our taxonomy of five approaches that the Justices may use to signal that a precedent is disfavored. Part III provides our case studies and empirical findings. Finally, Part IV builds on the theoretical framing and empirical work to argue that, under a decisional authority model, there are limits to the manner in which the Supreme Court may properly undermine its own handiwork.

  1.  See Lemon v. Kurtzman, 403 U.S. 602, 612–13 (1971). ↑
  2.  See infra Section III.A. ↑
  3.  142 S. Ct. 2407, 2427–28 (2022). The dissenters understood Kennedy as the first official overruling of the Lemon test. See id. at 2434, 2447, 2449 (Sotomayor, J., dissenting). ↑
  4.  See 403 U.S. 388, 395–97 (1971). ↑
  5.  See Ziglar v. Abbasi, 582 U.S. 120, 135 (2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 675 (2009)); infra Section III.B. ↑
  6.  See Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 844–45, 865 (1984). ↑
  7.  See infra Section III.C. ↑
  8.  Loper Bright Enters. v. Raimondo, 144 S. Ct. 2244, 2252, 2272 (2024). ↑
  9.  See, e.g., Rachel Bayefsky, Judicial Institutionalism, 109 Cornell L. Rev. 1297, 1305 (2024) (arguing that “it can be institutionally beneficial for judges” to engage in “stealth overruling”); Barry Friedman, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), 99 Geo. L.J. 1, 4–5 (2010) (criticizing “stealth overruling”); Daniel B. Rice & Jack Boeglin, Confining Cases to Their Facts, 105 Va. L. Rev. 865, 872 (2019) (criticizing the approach of confining a precedent to its facts); Richard M. Re, Narrowing Precedent in the Supreme Court, 114 Colum. L. Rev. 1861, 1865–66 (2014) [hereinafter Re, Narrowing in the Court] (defending “narrowing”); Bill Watson, Obstructing Precedent, 119 Nw. U. L. Rev. 259, 263–64 (2024) (offering a limited defense of “obstructing” precedent). ↑
  10.  For recent examples, see Labrador v. Poe, 144 S. Ct. 921, 927 (2024) (Gorsuch, J., concurring in the grant of stay, joined by Thomas & Alito, JJ.) (“Lower courts would be wise to take heed.”); United States v. Texas, 143 S. Ct. 1964, 1977 (2023) (Gorsuch, J., concurring in the judgment, joined by Thomas & Barrett, JJ.) (suggesting that “lower courts should just leave that idea [of special solicitude for state standing] on the shelf in future” cases). ↑
  11.  See, e.g., Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev.

    817, 821–22 (1994) [hereinafter Caminker, Inferior Courts]; Evan H. Caminker, Precedent and Prediction: The Forward-Looking Aspects of Inferior Court Decisionmaking, 73 Tex. L. Rev. 1, 6–7 (1994) [hereinafter Caminker, Precedent and Prediction]; Tara Leigh Grove, Sacrificing Legitimacy in a Hierarchical Judiciary, 121 Colum. L. Rev. 1555, 1563 (2021) [hereinafter Grove, Legitimacy]; Henry Paul Monaghan, On Avoiding Avoidance, Agenda Control, and Related Matters, 112 Colum. L. Rev. 665, 669 (2012); Richard M. Re, Narrowing Supreme Court Precedent From Below, 104 Geo. L.J. 921, 927 (2016) [hereinafter Re, Narrowing From Below]; Thomas P. Schmidt, Judicial Minimalism in the Lower Courts, 108 Va. L. Rev

    .

    829, 837–39 (2022). ↑

  12.  See infra Part III (describing these doctrinal changes). ↑
  13.  We describe in Part III our coding methodology for each doctrinal area. ↑
  14.  See infra Section II.B. ↑
  15.  We borrow the “authority” and “prediction” terms from Richard Re. See Re, Narrowing From Below, supra note 11, at 940. Evan Caminker has used the terms “precedent” and “proxy” models to embody the same basic distinction. See Caminker, Precedent and Prediction, supra note 11, at 4–6. ↑
  16.  See infra Section II.B. ↑
  17.  See, e.g., Agostini v. Felton, 521 U.S. 203, 237 (1997) (reaffirming that if “a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions” (quoting Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490 U.S. 477, 484 (1989))). ↑
  18.  For examples, see infra notes 28–32 and accompanying text. ↑
  19.  See, e.g., Hein v. Freedom from Religion Found., Inc., 551 U.S. 587, 636–37 (2007) (Scalia, J., concurring in the judgment) (calling for the overruling of Flast v. Cohen, 392 U.S. 83 (1968), rather than “beating Flast to a pulp and then sending it out to the lower courts weakened, denigrated, more incomprehensible than ever, and yet somehow technically alive”); infra Part III (noting calls to overrule other doctrines). ↑
  20.  See, e.g., Mack v. Yost, 63 F.4th 211, 226 & n.12 (3d Cir. 2023) (noting that “the textual and policy-based underpinnings of qualified immunity have generated debate in recent years,” but also observing that “whether the doctrine should continue in its current form . . . is not within [the lower courts’] purview”). ↑
  21.  At the time this Article went to press, the Court had not yet overturned its precedent allowing for congressional restrictions on removal, but it had narrowly interpreted that precedent, and some Justices had called for its reversal. See, e.g., Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2211–12 (2020) (Thomas, J., concurring in part and dissenting in part, joined by Gorsuch, J.) (arguing for overruling Humphrey’s Executor v. United States, 295 U.S. 602 (1935), and claiming that the Court has already “repudiated almost every aspect” of that decision). The Court has also stayed district court rulings that relied on Humphrey’s Executor to prohibit President Trump from removing members of various federal agencies, including the National Labor Relations Board (“NLRB”) and the Merit Systems Protection Board (“MSPB”). See Trump v. Wilcox, 145 S. Ct. 1415, 1415 (2025). In September 2025, the Court finally granted certiorari to decide whether to overturn Humphrey’s Executor. See Trump v. Slaughter, Nos. 25A264, 25-332, 2025 WL 2692050, at *1 (U.S. Sept. 22, 2025). ↑
  22.  Compare Thomas W. Merrill, Rethinking Article I, Section 1: From Nondelegation to Exclusive Delegation, 104 Colum. L. Rev. 2097, 2105 (2004) (noting that, despite the Supreme Court’s unwillingness to enforce the nondelegation doctrine up to that point, “lower courts at irregular intervals persist in invalidating federal legislation on nondelegation grounds, resulting in a continuing trickle of cases reaching the Supreme Court”), with Am. Inst. for Int’l Steel, Inc. v. United States, 806 F. App’x 982, 990 (Fed. Cir. 2020) (“We will not project an overruling of the delegation-doctrine standard . . . .”). ↑

  23.  That is true as to both state standing and private party standing. See infra Section II.A. Similar issues also arise in the context of the political question doctrine, see Curtis A. Bradley & Eric A. Posner, The Real Political Question Doctrine, 75 Stan. L. Rev.

    1031, 1034 (2023) (discussing how the doctrine has had a vibrant life in the lower courts, even after the Supreme Court has been reluctant to apply the doctrine), and the Seventh Amendment, see Samuel L. Bray, Equity, Law, and the Seventh Amendment, 100 Tex. L. Rev. 467, 478–82 (2022). ↑

The President Told Me To: The Public Authority Defense in the Trump Era

After hundreds were charged in connection with the events of January 6, 2021, several defendants argued they were only doing what President Trump told them to. More specifically, they raised the public authority defense as articulated in the U.S. Court of Appeals for the District of Columbia Circuit’s Watergate-era case United States v. Barker. The defense involves a claim that an individual was authorized to engage in otherwise unlawful activity by a government official. But the D.C. Circuit was split on whether the government official in question must have the authority to make such an authorization, or if the defendant’s belief in the official’s apparent authority would suffice. The D.C. Circuit never clarified the standard, and now that President Trump has pardoned the January 6 defendants, the court is once again unable to do so. Nevertheless, the January 6 case is a prime test to determine the proper standard, and this is the prime time to do so, given the possibility of future prosecutions of current Trump Administration associates who may want to claim reliance on President Trump’s direction.

This Note makes four contributions: First, it describes the public authority defense case law, beginning with the actual-versus-apparent authority debate in Barker and its progeny. Second, this Note argues that the actual authority standard is correct based on existing law and policy. Third, it applies the actual and apparent authority standards to the January 6 case, illustrating how only the actual authority standard provides a workable rule. This conclusion makes clear that the public authority defense must fail for the January 6 defendants, but not for the reason courts thought. Fourth, this Note elucidates additional implications for the public authority defense and for those President Trump directs to take unlawful action during his second term. Ultimately, individuals cannot rely on a president’s orders to escape criminal culpability.

Introduction

President Trump’s approach to his second administration is best captured in his own tweet: “He who saves his Country does not violate any Law.”1 1.Donald J. Trump (@realDonaldTrump), X (Feb. 15, 2025, 1:32 PM), https://x.com/realDo‌naldTrump/status/1890831570535055759 [https://perma.cc/Z9L5-VV6V].Show More Newly emboldened in his second term by broad criminal immunity,2 2.See Trump v. United States, 144 S. Ct. 2312, 2327 (2024). The president is also immune from civil liability for official actions taken while in office. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982).Show More President Trump has made clear with his words that he believes he is above the law and will act accordingly. It is less clear, however, what happens to those the President instructs to undertake unlawful action at his behest.3 3.The Trump opinion only addressed the president, and it relied on the president’s unique position to hold that he is entitled to immunity. See Trump v. United States, 144 S. Ct. at 2327, 2330–31. Furthermore, absolute presidential immunity from civil suit does not extend to the president’s aides, so it is unlikely that criminal immunity would. See Harlow v. Fitzgerald, 457 U.S. 800, 808–13 (1982).Show More Perhaps these individuals have an affirmative defense: that the President told them to act unlawfully, and by virtue of his position as President of the United States, he legally authorized their otherwise criminal conduct. This defense is not merely hypothetical; it was raised by several of the individuals charged for their involvement with the January 6 attack on the U.S. Capitol. Although the January 6 rioters have all received pardons,4 4.Proclamation No. 10,887, 90 Fed. Reg. 8331 (Jan. 29, 2025).Show More revisiting their cases is a vital exercise to understand how such a defense works in anticipation of similar prosecutions that may arise from conduct engaged in during President Trump’s second term.

Throughout the various January 6 legal proceedings, several defendants pointed to President Trump’s incendiary language to argue that he ordered them to “stop the steal.”5 5.See infra notes 92–93.Show More During the presidential debate back in September 2020, in response to a question about whether he would condemn the far-right militia group the Proud Boys, President Trump told the group to “stand back and stand by.”6 6.Kathleen Ronayne & Michael Kunzelman, Trump to Far-Right Extremists: ‘Stand Back and Stand By,’ AP News (Sept. 30, 2020, 2:52 PM), https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1d‌b0f [https://perma.cc/LR78-FCNV].Show More In the months leading up to January 6, he repeatedly espoused the claim that the presidential election was stolen from him.7 7.H.R. Rep. No. 117-663, at 195, 213–16 (2022).Show More On the evening before the attack, President Trump again emphasized the election had been stolen and that his supporters had to do something to stop President-elect Joe Biden from taking office.8 8.Donald J. Trump (@realDonaldTrump), X (Jan. 5, 2021, 5:05 PM), https://x.com/realDon‌aldTrump/status/1346578706437963777 [https://perma.cc/TK9L-UAP6].Show More Finally, in a speech at the rally on the National Mall on January 6, 2021, just before the attack on the Capitol began, he made the following remarks:

Our country has had enough. We will not take it anymore and that’s what this is all about. And to use a favorite term that all of you people really came up with: We will stop the steal. . . . And fraud breaks up everything, doesn’t it? When you catch somebody in a fraud, you’re allowed to go by very different rules. . . . And we fight. We fight like hell. And if you don’t fight like hell, you’re not going to have a country anymore. . . . So we’re going to . . . walk down Pennsylvania Avenue. . . . And we’re going to the Capitol, and we’re going to try and give . . . them the kind of pride and boldness that they need to take back our country. So let’s walk down Pennsylvania Avenue.9 9.Transcript of Trump’s Speech at Rally Before US Capitol Riot, AP News (Jan. 13, 2021, 9:11 PM) [hereinafter Trump January 6 Speech Transcript], https://apnews.com/article/electio‌n-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27. President Trump was impeached for inciting insurrection based in part on this language. H.R. Res. 24, 117th Cong., at 3 (2021). Incitement does not necessarily equate to authorization, but the fact that this language was considered incitement by Congress nonetheless helps explain the effect President Trump’s words had on his supporters.Show More

Defendants used this language to argue that President Trump legally authorized their break-in of the Capitol Building. For example, defendant and Proud Boys member William Chrestman argued the following in a motion requesting release on bail:

Trump’s incitement and enablement of this insurrectionary riot weighs heavily against the weight of the evidence prong, because the mob was given explicit permission and encouragement by the former President to do what they did. The American head of state directed a specific action; the Due Process Clause says that those who obeyed him have a viable defense against criminal liability.10 10.Detention Memorandum at 11, United States v. Chrestman, 521 F. Supp. 3d 1107 (D. Kan. 2021) (No. 21-mj-08023) [hereinafter Detention Memorandum, Chrestman].Show More

Similarly, defendant Alexander Sheppard argued the following in his response to the government’s motion in limine:

Never before in our nation’s history has a sitting United States President, alongside other prominent elected officials, invited, encouraged, and condoned the public to engage in criminal conduct. . . . [T]he federal government now opposes Mr. Sheppard’s right to present a viable defense.11 11.Defendant’s Reply to Government’s Opposition to Notice of Public Authority Defense at 3–4, United States v. Sheppard, No. 21-cr-00203, 2022 WL 17978837 (D.D.C. Dec. 28, 2022) [hereinafter Defendant’s Reply to Government’s Opposition, Sheppard].Show More

This is the public authority defense. As described by the Department of Justice, such a defense is available where a government official authorized the defendant to engage in otherwise unlawful conduct.12 12.U.S. Dep’t of Just., Crim. Res. Manual § 2055, https://www.justice.gov/archives/jm/crimi‌nal-resource-manual-2055-public-authority-defense [https://perma.cc/85ZN-SK34].Show More This defense has its origins in a Watergate-era case, United States v. Barker.13 13.546 F.2d 940 (D.C. Cir. 1976) (per curiam).Show More There, the U.S. Court of Appeals for the District of Columbia Circuit held that the trial court should have allowed the defendants to raise the defense that they broke into a psychiatrist’s office to steal information about the person who leaked the Pentagon Papers only because a White House official told them to.14 14.Id. at 943, 954 (Wilkey, J.).Show More But the judges disagreed on how the defense should work. Judge Robert Merhige wrote that the defense required that the defendant receive authorization from someone who had the actual authority to make such an authorization.15 15.Id. at 955 (Merhige, J.).Show More Judge Malcolm Wilkey wrote separately that the defendant’s belief in the official’s apparent authority would suffice.16 16.Id. at 949 (Wilkey, J.).Show More That split has never been resolved.

The U.S. District Court for the District of Columbia decided that the public authority defense was unavailable in the January 6 cases.17 17.United States v. Chrestman, 525 F. Supp. 3d 14, 29, 33 (D.D.C. 2021).Show More While that conclusion is correct, the court’s reasoning is unpersuasive. The court did not clarify the correct standard for the defense and failed to wrestle with the factual comparisons to Barker.18 18.See infra Section I.C.Show More To foreshadow, the court concluded that the public authority defense fails because President Trump never gave an affirmative authorization; however, Barker and its progeny do not impose such a strict requirement.19 19.Infra Section I.C.Show More Engaging with the public authority defense case law reveals that the defense fails for the January 6 defendants not because President Trump never authorized their conduct, but because the President does not have the power to do so.

This Note is the first to give an in-depth treatment to the public authority defense case law, apply it to the January 6 defendants, and use this application to argue for the correct standard for the defense.20 20.The literature that addresses the public authority defense largely focuses instead on the related defense of entrapment by estoppel. See generally, e.g., John T. Parry, Culpability, Mistake, and Official Interpretations of Law, 25 Am. J. Crim. L. 1 (1997). But see generally Matthew Babb & Lauren Emmerich, Official Misrepresentations of the Law and Fairness, 17 Crim. L. & Phil. 83 (2023) (addressing both the entrapment by estoppel and public authority defense). A law review article from 1978 by attorney Stephen Kristovich addressed the apparent-versus-actual authority debate in Barker in its immediate wake and argued for the actual authority standard, but it did not have the benefit of analyzing the decades of case law following Barker. See generally Stephen M. Kristovich, United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense, 66 Calif. L. Rev. 809 (1978). Professor Alfredo Garcia explored the applicability of the public authority defense to a military officer turned January 6 defendant and concluded the public authority defense could not justify the January 6 conduct, but he neither established the precise contours of the defense nor explained why the elements laid out in either Barker opinion were not met. See generally Alfredo Garcia, The Public Authority Defense, January 6, 2021, and the Following Orders Defense: A Juxtaposition, in Human Flourishing: The End of Law 955 (W. Michael Reisman & Roza Pati eds., 2023). This Note pulls all the cases and doctrines together to argue for one articulation of the public authority defense using the January 6 test case to do so.Show More Part I explores the public authority defense case law, beginning with the diverging opinions in United States v. Barker that created the debate between actual and apparent authority. Part I then looks to other courts of appeals to draw out more precise contours of the defense. Part I concludes by examining how the January 6 defendants used this defense and why it was rejected.

Part II argues that the actual authority standard is the proper test for the public authority defense based on the weight of circuit-level authority, comparisons to the related doctrines of entrapment by estoppel and superior orders in military law, and public policy concerns. Part III then uses the January 6 defendants as a test case to further establish that only the actual authority standard produces a workable rule and legitimate outcome. This conclusion makes clear that the D.C. District Court had the right answer that the public authority defense should fail for the January 6 defendants, but for the wrong reason.

Part IV addresses implications of the January 6 case. First, the case draws out an additional limit on the defense beyond the actual authority standard, such that it should not work where there is a broad, public authorization. Second, the case suggests that the public authority defense is limited to specific factual circumstances and that Barker itself might be an exception rather than the rule. In conclusion, it is clear that in the event of future prosecutions of Trump Administration officials and associates, a defense that President Trump authorized their conduct is likely to fail.

  1.  Donald J. Trump (@realDonaldTrump), X (Feb. 15, 2025, 1:32 PM), https://x.com/realDo‌naldTrump/status/1890831570535055759 [https://perma.cc/Z9L5-VV6V]. ↑
  2.  See Trump v. United States, 144 S. Ct. 2312, 2327 (2024). The president is also immune from civil liability for official actions taken while in office. Nixon v. Fitzgerald, 457 U.S. 731, 749 (1982). ↑
  3.  The Trump opinion only addressed the president, and it relied on the president’s unique position to hold that he is entitled to immunity. See Trump v. United States, 144 S. Ct. at 2327, 2330–31. Furthermore, absolute presidential immunity from civil suit does not extend to the president’s aides, so it is unlikely that criminal immunity would. See Harlow v. Fitzgerald, 457 U.S. 800, 808–13 (1982). ↑
  4.  Proclamation No. 10,887, 90 Fed. Reg. 8331 (Jan. 29, 2025). ↑
  5.  See infra notes 92–93. ↑
  6.  Kathleen Ronayne & Michael Kunzelman, Trump to Far-Right Extremists: ‘Stand Back and Stand By,’ AP News (Sept. 30, 2020, 2:52 PM), https://apnews.com/article/election-2020-joe-biden-race-and-ethnicity-donald-trump-chris-wallace-0b32339da25fbc9e8b7c7c7066a1d‌b0f [https://perma.cc/LR78-FCNV]. ↑
  7.  H.R. Rep. No. 117-663, at 195, 213–16 (2022). ↑
  8.  Donald J. Trump (@realDonaldTrump), X (Jan. 5, 2021, 5:05 PM), https://x.com/realDon‌aldTrump/status/1346578706437963777 [https://perma.cc/TK9L-UAP6]. ↑
  9.  Transcript of Trump’s Speech at Rally Before US Capitol Riot, AP News (Jan. 13, 2021, 9:11 PM) [hereinafter Trump January 6 Speech Transcript], https://apnews.com/article/electio‌n-2020-joe-biden-donald-trump-capitol-siege-media-e79eb5164613d6718e9f4502eb471f27. President Trump was impeached for inciting insurrection based in part on this language. H.R. Res. 24, 117th Cong., at 3 (2021). Incitement does not necessarily equate to authorization, but the fact that this language was considered incitement by Congress nonetheless helps explain the effect President Trump’s words had on his supporters. ↑
  10.  Detention Memorandum at 11, United States v. Chrestman, 521 F. Supp. 3d 1107 (D. Kan. 2021) (No. 21-mj-08023) [hereinafter Detention Memorandum, Chrestman]. ↑
  11.  Defendant’s Reply to Government’s Opposition to Notice of Public Authority Defense at 3–4, United States v. Sheppard, No. 21-cr-00203, 2022 WL 17978837 (D.D.C. Dec. 28, 2022) [hereinafter Defendant’s Reply to Government’s Opposition, Sheppard]. ↑
  12.  U.S. Dep’t of Just., Crim. Res. Manual § 2055, https://www.justice.gov/archives/jm/crimi‌nal-resource-manual-2055-public-authority-defense [https://perma.cc/85ZN-SK34]. ↑
  13.  546 F.2d 940 (D.C. Cir. 1976) (per curiam). ↑
  14.  Id. at 943, 954 (Wilkey, J.). ↑
  15.  Id. at 955 (Merhige, J.). ↑
  16.  Id. at 949 (Wilkey, J.). ↑
  17.  United States v. Chrestman, 525 F. Supp. 3d 14, 29, 33 (D.D.C. 2021). ↑
  18.  See infra Section I.C. ↑
  19.  Infra Section I.C. ↑

  20.  The literature that addresses the public authority defense largely focuses instead on the related defense of entrapment by estoppel. See generally, e.g., John T. Parry, Culpability, Mistake, and Official Interpretations of Law, 25 Am. J. Crim. L. 1 (1997). But see generally Matthew Babb & Lauren Emmerich, Official Misrepresentations of the Law and Fairness, 17 Crim. L. & Phil. 83 (2023) (addressing both the entrapment by estoppel and public authority defense). A law review article from 1978 by attorney Stephen Kristovich addressed the apparent-versus-actual authority debate in Barker in its immediate wake and argued for the actual authority standard, but it did not have the benefit of analyzing the decades of case law following Barker. See generally Stephen M. Kristovich, United States v. Barker: Misapplication of the Reliance on an Official Interpretation of the Law Defense, 66 Calif. L. Rev. 809 (1978). Professor Alfredo Garcia explored the applicability of the public authority defense to a military officer turned January 6 defendant and concluded the public authority defense could not justify the January 6 conduct, but he neither established the precise contours of the defense nor explained why the elements laid out in either Barker opinion were not met. See generally Alfredo Garcia, The Public Authority Defense, January 6, 2021, and the Following Orders Defense: A Juxtaposition, in Human Flourishing: The End of Law 955 (W. Michael Reisman & Roza Pati eds., 2023). This Note pulls all the cases and doctrines together to argue for one articulation of the public authority defense using the January 6 test case to do so. ↑

Radical Constitutional Change

At defining points in American history, there have been radical constitutional changes, defined as massive shifts in constitutional understandings, doctrines, and practices. Apparently settled principles and widely accepted frameworks are discarded as erroneous, even illegitimate, in favor of new principles and frameworks. Less momentously, views that were once considered unthinkable do not quite become the law on the ground but instead come to be seen as plausible and part of the mainstream. Relatedly, Americans transform how they talk and think about their Constitution—its core commitments and underlying narratives. These radical, dizzying changes often trigger a sense of “constitutional vertigo,” particularly in those wedded to the old order. Our goal is to provide a conceptual map and to describe how and why radical constitutional change occurs and the vertigo that it precipitates. First, we ask whether theories of interpretation trigger radical change, or whether desires for fundamental change impel people to generate new (or modify old) theories of interpretation. Second, we explore why so many people experience a form of vertigo. Third, we investigate the drivers of radical constitutional change, both the familiar bottom-up pressures from “We the People” (sometimes authorizing or leading to radical change driven by the president or Congress) and the less familiar top-down approaches, where legal elites push for and then impose a new constitutional regime.

But something is happening
And ya’ don’t know what it is
Do you, Mister Jones?

  • – Bob Dylan, “Ballad of a Thin Man”1 1.Bob Dylan, Ballad of a Thin Man, on Highway 61 Revisited (Columbia Recs. Aug. 30, 1965).Show More

“What feels different at this moment is the ambition and the velocity, how fast and aggressively [constitutional change is] happening . . . .”

  • – Barry Friedman2 2.Jesse Wegman, The Crisis in Teaching Constitutional Law, N.Y. Times (Feb. 26, 2024), https://www.nytimes.com/2024/02/26/opinion/constitutional-law-crisis-supreme-court.html.Show More

“I couldn’t stand up in front of the class and pretend the students should take the [Roberts C]ourt seriously in terms of legal analysis.”

Introduction

Heads have spun before, and heads are spinning now.

Heads spun during the New Deal, with titanic initiatives from Franklin Delano Roosevelt and his New Deal and, eventually, dramatic shifts from the Supreme Court. Heads spun during the heyday of the Warren Court, and Lyndon Baines Johnson’s Great Society left many woozy.

Nothing is exactly like anything else, of course, and things that seem alike might be very different—radically different, so to speak. We write in 2025. For many, the Roberts Court’s jurisprudential shifts are revolutionary in their scope, magnitude, and pace. Or consider the flurry of executive orders in the early days of the second term of President Donald Trump. Many people think that the United States is in a full-blown “constitutional crisis,” stemming from what they see as the executive branch’s attempts to topple settled understandings—for example, to reconceptualize birthright citizenship, to reject the independence of independent agencies and thus to overturn Humphrey’s Executor v. United States, to revive a long-dormant Impoundment Power, and to punish law firms and universities thought to be associated with certain causes and points of view.4 4.See Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025); Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); Adam Liptak, Trump’s Actions Have Created a Constitutional Crisis, Scholars Say, N.Y. Times (Feb. 12, 2025), https://www.nytimes.com/2025/02/10/us/politics/trump-constitutional‌-crisis.html.Show More One powerful adviser to President Trump, now the Director of the Office of Management and Budget, has exhorted the Right to become “radical constitutionalists” and “throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years.”5 5.Russell Vought, Renewing American Purpose, Am. Mind (Sept. 29, 2022) (emphasis omitted), https://americanmind.org/salvo/renewing-american-purpose/ [https://perma.cc/3F‌F6-298G].Show More

Our goal is to step back from particular rulings, orders, and events and assess the phenomenon of radical constitutional change writ large. Like that powerful aide to President Trump, we too are interested in radical constitutionalism. But our focus is not on the Roberts Court or President Trump, and we do not have much to say about them here, except to link them with prior developments and to emphasize what is obvious, which is that whether one (or both) are instigators of radical constitutional change will become much more apparent in the years to come.

Our topic is a general phenomenon: on occasion, the scope, magnitude, and pace of constitutional shifts are so significant that contemporaries feel that the foundations are shaking, with much of the past—its theoretical underpinnings, its practices, and its doctrines—abruptly delegitimated. We describe the burial of the past and the advent of a new regime as “radical constitutional change”6 6.We use “radical constitutional change” as a relational concept, without any reference to the political left. We use “radical” to connote a far-reaching or thoroughgoing change.Show More or a “constitutional paradigm shift.” Such transformations are the source of constitutional vertigo, a dizzying sense that the old order is crashing down.

There is no doubt that constitutional law periodically experiences paradigm shifts.7 7. See generally Thomas S. Kuhn, The Structure of Scientific Revolutions (1962) (exploring how paradigms shift in scientific fields). We use the idea of paradigm shift in a more colloquial way than Kuhn does.Show More As we understand it, a paradigm is a defining approach or framework, not an isolated ruling or action. Considered in isolation, a modest modification of some doctrine or practice does not produce a sense of vertigo. Tinkering is not radical. And yet, a single decision, or a framework that makes it possible, might rest on a widely held paradigm, and the repudiation of that decision or framework might reflect a nascent, or a newly regnant, constitutional paradigm.8 8.Arguable examples include West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (rejecting the Lochner Court’s use of substantive economic due process and upholding a state law setting minimum wages for working women); Brown v. Board of Education, 347 U.S. 483 (1954) (overruling the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), to declare school segregation unconstitutional); Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to hold that the federal Constitution does not provide a right to abortion); District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment protects an individual’s right to possess a firearm in his home); Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 143 S. Ct. 2141 (2023) (holding that affirmative action admissions practices in universities violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a public official allegedly subject to defamatory falsehoods relating to his official conduct must prove actual malice in order to recover damages for the defamation); and Reynolds v. Sims, 377 U.S. 533, 534 (1964) (holding that the “Equal Protection Clause requires substantially equal legislative representation for all citizens in a State regardless of where they reside”).Show More

Years ago, a unique form of radical constitutional change received considerable attention. Much was written about “constitutional moments,”9 9.See generally 2 Bruce Ackerman, We the People: Transformations (1998).Show More understood as large-scale political and legal rethinking of constitutional commitments, culminating in legitimate constitutional transformation. The Founding, the Civil War, and the New Deal have been described as constitutional moments.10 10.See id. at 11–12.Show More According to Bruce Ackerman, these were legitimate transformations because they reflected popular reformation of the Constitution.11 11.See 1 Bruce Ackerman, We the People: Foundations 40–44 (1991) (“[B]oth Reconstruction Republicans and New Deal Democrats engag[ed] in self-conscious acts of constitutional creation that rivaled the Founding Federalists’ in their scope and depth.”).Show More More recently, David Strauss has highlighted many constitutional changes, both large and small, that arose outside of Article V.12 12.See David A. Strauss, The Living Constitution 115–39 (2010).Show More Strauss urges that ours is a common law constitution whose meaning is determined, and altered, through case-by-case judgments. Most of the shifts he describes are not significant enough to count as constitutional moments, but many are by no means incremental and could be said to be part of a larger constitutional transformation.

It is difficult to specify necessary and sufficient conditions for constitutional moments.13 13.For discussion, see Daniel Taylor Young, How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling to Evaluate Bruce Ackerman’s Theory of Constitutional Change, 122 Yale L.J. 1990, 1993–96 (2013).Show More There is debate about how stringent such tests should be.14 14.Compare 1 Ackerman, supra note 11, at 266–67 (describing four necessary stages: signaling, proposal, mobilized public deliberation, and codification), with 3 Bruce Ackerman, We the People: The Civil Rights Revolution 44–46 (2014) (advancing a more complicated process of signaling, proposal, a triggering election, mobilized elaboration, a ratifying election, a consolidating phase, and a return to normal politics).Show More In any case, most large-scale shifts lack the procedural rigor and popular support that some demand for legitimate transformation. We analyze the phenomenon of constitutional change without regard to whether the changes are legitimate, which makes our project broader than Ackerman’s. Further, our account differs from Strauss’s. While he focuses on how case-by-case judgments change constitutional law over time, we (mostly) widen the lens and consider why and how radical constitutional change occurs, the vertigo it causes, and the crucial role of top-down, elite-driven change in constitutional law.

Jack Balkin’s treatment of “off-the-wall” and “on-the-wall” constitutional claims describes how it is that certain arguments that were once seen as outlandish come to be taken seriously by some and, eventually, by many.15 15.See, e.g., J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703, 1729 (1997) (describing “off-the-wall” interpretations of the Constitution as those which are “clearly unpersuasive at any given point in time, given the political and professional consensus of opinion”); Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 179–83(2011) (developing “off-the-wall” versus “on-the-wall” as “a convenient shorthand for a more complicated array of views—call it the ‘spectrum of plausibility’—that well-socialized lawyers might have about a constitutional claim”). We are particularly taken by this illuminating (and charming) comment:[M]y own judgment about what is “on the wall” and what is “off the wall” . . . is slowly but surely moving out of the mainstream . . . . My sense of what is possible and plausible, what is competent legal reasoning and what is simply made up out of whole cloth is probably mired in an older vision of the Constitution that owes much to the Warren and Burger Courts as well as to the predominantly liberal legal academy in which I was educated, trained, and now teach. Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L.J. 1407, 1446 (2001).Show More We have learned a great deal from Balkin’s important work, and portions of our discussion borrow from and build on his insights. Our treatment touches upon additional matters, including the relationship between constitutional theories and change, the vertiginous consequences of paradigm shifts, and top-down, not just bottom-up, theories of constitutional change. Other differences emerge, though we refrain from identifying all relevant contrasts.

In this Article, we offer a conceptual map and discuss how constitutional arguments move from the margin to the mainstream and thus induce a sense of vertigo. We make five claims:

  1. Constitutional understandings can be arrayed along a continuum. In the center is the mainstream of thought. Beyond the mainstream are claims that can be aligned along the continuum from extreme to outlandish to unthinkable. A constitutional argument can move between these categories, shifting from the outlandish to the mainstream or from the mainstream to the unthinkable. Of course, some unthinkable claims are attractive to the left, and others are attractive to the right. (We offer examples.)
  2. Theories of constitutional interpretation do not much constrain radical constitutional change, either because most theories are flexible enough to authorize such change, or (in our view, more interestingly) because those seeking radical change tend to endorse a theory that mandates or permits it.16 16.See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 50–51 (1980).Show More Indeed, some embrace a constitutional theory precisely because it mandates or permits the radical change they desire. This is the reason, or at least a reason, that some constitutional theories come to be seen as intensely appealing, even if they seemed weird, outlandish, or radical when they were initially proposed. This is also, we think, a significant part of what constitutional theorizing in the academy and elsewhere is about, at least implicitly.
  3. Radical constitutional change is often a product of bottom-up influences, as when ordinary citizens insist on such change and institutions respond (including with a theory of interpretation that legitimates such change). But constitutional change also reflects top-down influences, as when legal elites (within the academy, the bar, and the federal government17 17.More precisely, by legal elites we mean members of Congress, the executive branch, the judiciary, the bar, and the legal academy. In some areas, say, when states are trying to drive constitutional change, what state officials say and do will matter as well.Show More) articulate a new theory or argue for new outcomes and convince other elites. The role of legal elites in driving constitutional change has received far too little attention. In fact, without the backing of at least some legal elites, no constitutional change at the federal level is possible because, as we explain later, elites enjoy a monopoly over all the instruments of change. The undoubted divisions among elites do not diminish this monopoly. Furthermore, elites gatekeep constitutional change, even as some significant elites (legislators and presidents) are subject to an electoral check. Sometimes the public merely authorizes radical constitutional change, and national institutions (presidents, Congress, courts) take the lead.
  4. Radical constitutional change produces a sense of vertigo among those educated in, or committed to, the displaced regime. Often, they feel disoriented, even gaslighted. This vertigo occurs because old theories are discarded, and new ones take their place. It occurs because old narratives, widely accepted for decades, are repudiated in favor of new narratives, perhaps understanding U.S. history in novel and different ways. It occurs because some canonical cases lose that status, and new cases, or long-neglected cases, become iconic and part of the new canon.18 18.We are grateful to Lawrence Solum for help with this paragraph. Consider here Brown v. Board of Education, much criticized in its time, but now taken for granted by all sides. Brown has been canonized by all. We briefly discuss the contemporaneous critique of Brown below, noting that our discussion might be revealing to those who believe that the decision was obviously right. In our view, matters are far more complicated. See infra Section I.B.Show More It occurs because canonical cases, or long-neglected cases, become understood in radically new and different ways.
  5. Constitutional law is highly contingent—far more so than those immersed in a particular period tend to think. Contemporary lawyers, law professors, and judges often find it difficult to grasp the central methods at work in constitutional law in (say) 1890, 1920, and 1950 because those methods are so far from their own. People immersed in a particular set of understandings—and used to seeing contemporary Justices as larger than life, even giants (perhaps heroes, perhaps villains)—tend to treat their practices and conceptions as somewhat timeless and fixed, rather than as one effort to see through a glass darkly. That is one reason that they experience a sense of vertigo when what seemed timeless is thrown into some kind of garbage can.

Part I lays out a continuum of constitutional claims. We explore change in all its forms—the rejection of established doctrine and practices, the radical changes in theories, and the movement of claims once seen as extreme and outlandish to being taken as reasonable, mainstream, and even correct. When that movement occurs, some people experience a sense of triumph, as if they have won a war, while others have a sense of defeat, as if their world has been lost.

In Part II, we consider the complicated relationship between radical constitutional change and theories of constitutional interpretation.19 19.Our discussion of the rise and fall of constitutional theories intersects with Philip Bobbitt’s constitutional modalities. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution 7 (1982). It is possible that some theories of constitutional interpretation (e.g., a concern for discrete and insular minorities) reflect a focus on ethical arguments, and that other theories (say, originalism) exalt text and history. Most theories of interpretation are pluralistic in the sense that they rely upon more than one of Bobbitt’s modalities. While Bobbitt believes that each of his modalities is an appropriate method of interpretation, we wonder whether his work mostly reflects the particular factors that seemed especially relevant at the end of the twentieth century.Show More We discuss whether constitutional theories are accelerants or retardants to radical change. We also discuss the possibility that some people modify or create new constitutional theories to legitimate or foster radical constitutional change. As we will see, some carts lead some horses.

Part III focuses on the phenomenon of constitutional vertigo. Some regard radical change, when it occurs, as a byproduct of naked power.20 20.For a vivid example, see James Jackson Kilpatrick, The Southern Case for School Segregation 105 (1962).Show More To them, a pack of yahoos, or extremists, or authoritarians discarded the old regime, with judges and haven’t-got-a-clue law professors both following political winds and doing politics.21 21.See the discussion of Burke, infra Section II.B.Show More They hijacked the Constitution. The inmates seem to be running the asylum. “This is not law; this is not our Constitution,” the critics will proclaim.22 22.See Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures, 1958, at 55 (1958); Kilpatrick, supra note 20, at 165–66.Show More The skeptics and the proponents live in different epistemic communities; what they think, and what they know, reflects their parochial community and offers (if it is in the ascendancy) a sense of timelessness.23 23.The term “epistemic communities” emerged out of and is most often used in the field of international relations in ways that overlap with but are more specific than our usage here. For overviews of the concept as it developed in international relations, see Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1, 3 (1992); Peter Haas, Epistemic Communities, in The Oxford Handbook of International Environmental Law 698, 698–701 (Lavanya Rajamani & Jacqueline Peel eds., 2d ed. 2021). For a valuable account of how people know what they know, with an emphasis on epistemic limits, see generally Russell Hardin, How Do You Know? The Economics of Ordinary Knowledge (2009). In law, see Kerstin von Lingen, Epistemic Communities of Exile Lawyers at the UNWCC, 24 J. Hist. Int’l L. 315, 316–17 (2022) (discussing epistemic communities among lawyers).Show More

But the communities may eventually find common ground, for once the new order is widely accepted, much from the bygone era will seem jarring, even illegitimate, perhaps part of the “anticanon.”24 24.See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011) (“[T]he project of identifying the Supreme Court’s worst decisions is not solely a normative one. There is a stock answer to the question, not adduced by anyone’s reflective legal opinion but rather preselected by the broader legal and political culture. . . . [These cases] are the American anticanon. Each case embodies a set of propositions that all legitimate constitutional decisions must be prepared to refute.”).Show More Long after a new regime takes hold, a lawyer might find past discourse baffling: “How was any of this plausible, much less the law?”

Consider some wisdom from the physicist Max Planck: “A new scientific truth does not triumph by convincing its opponents and making them see the light, but rather because its opponents eventually die, and a new generation grows up that is familiar with it.”25 25.Max Planck, A Scientific Autobiography (1948), reprinted in Scientific Autobiography and Other Papers 13, 33–34 (Frank Gaynor trans., 1950).Show More Science, it is sometimes said, advances one funeral at a time, and there is scientific evidence that this is quite true.26 26.Pierre Azoulay, Christian Fons-Rosen & Joshua S. Graff Zivin, Does Science Advance One Funeral at a Time?, 109 Am. Econ. Rev. 2889, 2889 (2019). We are pleased to report that the authors of this article are all alive.Show More The same is often true, we suggest, in law. But Planck’s famous statement is too stark. Well before the death of the opponents of a new order, the handwriting may be on the wall, and hence the widespread sense of vertigo. Something is happening here, but the defenders of the old order may not know what it is. Sometimes, the guardians of the old order die twice, as it were—once when their theory is unceremoniously (or ceremoniously) discarded, and once when they pass.

We discuss the drivers of radical change in Part IV, focusing on elites. There is a rich literature about social movements focused on constitutional change27 27.An intriguing account of two such movements, focused on James Baldwin and William F. Buckley Jr., is Nicholas Buccola, The Fire Is Upon Us: James Baldwin, William F. Buckley Jr., and the Debate Over Race in America (2019). Baldwin’s movement, as we might call it, had serious consequences for constitutional law in the 1960s and 1970s, as did Buckley’s decades later. There are stories to tell there, but we will not tell them here.Show More—groups that seek to shift the Overton Window and alter constitutional doctrine.28 28.Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 345 (2001) (“Over the life of the Republic, social movements have played a significant role in shaping constitutional understandings.”); Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 1945–47, 1950 (2003). See generally William N. Eskridge, Jr. & Christopher R. Riano, Marriage Equality: From Outlaws to In-Laws (2020) (discussing the gay rights movement).Show More We expand the lens from bottom-up catalysts to encompass the paradigm shifts that originate from the top. Officials, scholars, and lawyers have their constitutional theories and are not merely reacting to bottom-up pressures. Top-down shifts include the textualist turn,29 29.See William N. Eskridge, Jr., Brian G. Slocum & Kevin Tobia, Textualism’s Defining Moment, 123 Colum. L. Rev. 1611, 1612 (2023) (describing textualism as creating a “revolution in statutory interpretation”).Show More the swing toward the unitary executive,30 30.See Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2202–03 (2020); see also Cass R. Sunstein & Adrian Vermeule, The Unitary Executive: Past, Present, Future, 2020 Sup. Ct. Rev. 83, 105–10 (2021) (discussing Seila Law’s implications for the future of unitary executive theory).Show More and the push for a constitutional right to welfare.31 31.See Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970); see also Frank I. Michelman, The Supreme Court, 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 9 (1969) (describing the “judicial ‘equality’ explosion” and positing that the Court’s interventions in the mid-twentieth century were “mainly designed to move us towards a condition of economic equality,” with an emphasis on a decent minimum for all).Show More In these cases, elites sought to alter the law through argumentation and advocacy.32 32.A vivid example is Goldberg, 397 U.S. at 262 n.8, which pointedly cited Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965), and Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964).Show More Members of the public might not know or care much about top-down shifts; they might give a permission slip. Further, we demonstrate that elite buy-in is necessary for any form of federal constitutional change, radical or otherwise.

Part V considers two hypotheticals that may border on science fiction: one involving abortion and the other the Senate. Some pro-lifers believe that the Constitution forbids abortion.33 33.See infra notes 295–96.Show More These advocates hope to mainstream their view and convince officials (executive, legislative, and judicial) to adopt it. Claiming that the Senate is unconstitutional seems unthinkable, perhaps bonkers. Yet under not unimaginable (though hardly likely) circumstances, the argument could be mainstreamed. Our point is not to convince you that either claim will become part of the mainstream, much less established doctrine, but rather that certain forms of radical change will seem exceedingly unlikely, if not unthinkable, until they belatedly occur. For those who find our claims here to be implausible, consider the effort, in 2025, to reconceive birthright citizenship, an effort that might not have even been imaginable just ten years before.34 34.Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025).Show More

A few words about the contours of our project are necessary. We do not address whether radical changes are legitimate or illegitimate, misguided or long overdue. Ours is a descriptive project. Further, we ignore Article V. We seek to describe how radical constitutional change occurs on the ground. From that perspective, Article V has been neither necessary nor sufficient for radical constitutional change. Moreover, nothing we say should be read as endorsing or rejecting any particular constitutional theory. Whether one is a Dworkinian,35 35.See Ronald Dworkin, Law’s Empire, at vii (1986).Show More a believer in the Compact Theory,36 36.See John C. Calhoun, The South Carolina Exposition (1828), reprinted in 6 The Works of John C. Calhoun 1, 38–39 (Richard K. Crallé ed., N.Y., D. Appleton & Co. 1855).Show More an originalist, or a fan of representation reinforcement,37 37.See Ely, supra note 16, at 181.Show More everyone can profit from pondering radical constitutional change by temporarily sidelining their preferred theory of interpretation.38 38.There are two more limits on our project: First, we say nothing about how constitutional change fits within the broader question of legal change. Second, we do not address the role that technology plays in constitutional change.Show More

We believe that (almost) everyone can recognize the sweeping changes right before our eyes.39 39.For an early recognition of the change, see Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev. 1, 2–4 (2013). Solum’s account is broadly compatible with ours.Show More The Roberts Court may be (is?) the new Warren Court.40 40.Thankfully, one may accept our framework even if one concludes that the Roberts Court has been incrementalist. Skeptics of our claim might argue that the number of overrulings remains limited. For instance, according to Jonathan Adler, the Roberts Court has been far more respectful of precedent as compared to the Warren and Burger Courts. See Jonathan H. Adler, The Restrained Roberts Court, Nat’l Rev. (July 13, 2023, 2:17 PM), https://www.nation‌alreview.com/magazine/2023/07/31/the-restrained-roberts-court/. Other skeptics might say that while doctrine has changed, the real world has not changed all that much. For example, one might claim that Dobbs has not much affected the number of abortions and that SFFA has not much changed the racial composition of entering college classes. (These are of course empirical issues.) Further, one might say that the ultimate impacts are uncertain because the Court has not fully specified the criteria that lower courts must apply. But let us be stubborn: the landscape of constitutional law looks dramatically different from what it was in (say) 2007, for even if the number of precedents overturned remains relatively low, the sheer magnitude of these changes cannot be gainsaid. The rise of Second Amendment rights; the embrace of a unitary executive; the protection of commercial advertising; the growing solicitude for free exercise claims; the emphasis on textual, originalist, and historical methodology (whether consistently applied or not); the repudiation of the idea that courts should defer to agency interpretations of ambiguous statutes (an abandonment rooted in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803))—all this signals that something is happening here. We know what it is, Mr. Jones. To offer a bit more detail, the discarding of Roe and Casey is a monumental change. Roe had shaped people’s perceptions of the Constitution and the Court. Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr.(Sept. 1, 2022), https://ww‌w.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-foll‌owing-abortion-ruling/ [https://perma.cc/DPQ4-AF2P]. Its termination via Dobbs is a watershed, even if most states permit abortion. Furthermore, Dobbs signals a significant change in the operation of “substantive due process.” The focus on (relatively) ancient history and traditions signals that this Court frowns on the use of the two Due Process Clauses as twin engines of constitutional innovation. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2248 (2022). Likewise, the discarding of Grutter v. Bollinger, 539 U.S. 306 (2003), clearly signals that another transformation is afoot. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2170–75 (2023). SFFA is momentous because it overturned a highly permissive regime, one in which colleges could use race in their admissions. It is reasonable to think that SFFA will eventually affect admissions and class composition, as colleges get sued for flouting its constraints. SFFA also will spur, and is spurring, suits against the use of race in governmental employment, contracting, and funding, with courts likely to strike down some or many such programs. See, e.g., Julian Mark & Aaron Gregg, Federal Judge Halts Disaster Aid Program for Minority Farmers, Wash. Post (June 10, 2024), https://www.washingtonpost.com/business/2024/06/10/usda-minority-farmers-injunct‌ion/ (discussing an equal protection suit brought against the Agriculture Department and other such lawsuits); Anemona Hartocollis, Northwestern Law School Accused of Bias Against White Men in Hiring, N.Y. Times (July 2, 2024), https://www.nytimes.com/2024/07/02/us/aff‌irmative-action-lawsuit.html (discussing a Title IX suit and the impact of SFFA). And as mentioned earlier, there are other major changes afoot, regarding free exercise, the Establishment Clause, standing, takings, and more.Show More And, we have seen, prominent members of the Trump Administration seem bent on radical change.41 41.See, e.g., Vought, supra note 5 (calling for the right “to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years”).Show More If vertiginous constitutional change is afoot,42 42.Some colleagues have made to us a more radical point (pun intended): constitutional change is never truly radical unless one witnesses undeniably revolutionary change. The French and Russian Revolutions yielded radical constitutional change; without such a transformation in constitutional fundamentals, there is no paradigm shift. Because radical change is necessarily contextual, we can see why some, particularly those focused on comparative constitutional law, might suppose that none of the changes that America has experienced is radical. But within the American context, we believe that there have been many paradigm shifts that have transformed how we see and implement our Constitution. What can be radical for America may be humdrum elsewhere. May it always be so.Show More it is a particularly apt moment for theorizing about constitutional paradigm shifts.

  1.  Bob Dylan, Ballad of a Thin Man, on Highway 61 Revisited (Columbia Recs. Aug. 30, 1965). ↑
  2.  Jesse Wegman, The Crisis in Teaching Constitutional Law, N.Y. Times (Feb. 26, 2024), https://www.nytimes.com/2024/02/26/opinion/constitutional-law-crisis-supreme-court.html. ↑
  3.  Id. ↑
  4.  See Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025); Humphrey’s Ex’r v. United States, 295 U.S. 602 (1935); Adam Liptak, Trump’s Actions Have Created a Constitutional Crisis, Scholars Say, N.Y. Times (Feb. 12, 2025), https://www.nytimes.com/2025/02/10/us/politics/trump-constitutional‌-crisis.html. ↑
  5.  Russell Vought, Renewing American Purpose, Am. Mind (Sept. 29, 2022) (emphasis omitted), https://americanmind.org/salvo/renewing-american-purpose/ [https://perma.cc/3F‌F6-298G]. ↑
  6.  We use “radical constitutional change” as a relational concept, without any reference to the political left. We use “radical” to connote a far-reaching or thoroughgoing change. ↑
  7.  See generally Thomas S. Kuhn, The Structure of Scientific Revolutions (1962) (exploring how paradigms shift in scientific fields). We use the idea of paradigm shift in a more colloquial way than Kuhn does. ↑
  8.  Arguable examples include West Coast Hotel Co. v. Parrish, 300 U.S. 379 (1937) (rejecting the Lochner Court’s use of substantive economic due process and upholding a state law setting minimum wages for working women); Brown v. Board of Education, 347 U.S. 483 (1954) (overruling the “separate but equal” doctrine of Plessy v. Ferguson, 163 U.S. 537 (1896), to declare school segregation unconstitutional); Dobbs v. Jackson Women’s Health Organization, 142 S. Ct. 2228 (2022) (overruling Roe v. Wade, 410 U.S. 113 (1973), and Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992), to hold that the federal Constitution does not provide a right to abortion); District of Columbia v. Heller, 554 U.S. 570 (2008) (holding that the Second Amendment protects an individual’s right to possess a firearm in his home); Students for Fair Admissions, Inc. v. President & Fellows of Harvard College (SFFA), 143 S. Ct. 2141 (2023) (holding that affirmative action admissions practices in universities violate the Equal Protection Clause of the Fourteenth Amendment and Title VI of the Civil Rights Act of 1964); New York Times Co. v. Sullivan, 376 U.S. 254 (1964) (holding that a public official allegedly subject to defamatory falsehoods relating to his official conduct must prove actual malice in order to recover damages for the defamation); and Reynolds v. Sims, 377 U.S. 533, 534 (1964) (holding that the “Equal Protection Clause requires substantially equal legislative representation for all citizens in a State regardless of where they reside”). ↑
  9.  See generally 2 Bruce Ackerman, We the People: Transformations (1998). ↑
  10.  See id. at 11–12. ↑
  11.  See 1 Bruce Ackerman, We the People: Foundations 40–44 (1991) (“[B]oth Reconstruction Republicans and New Deal Democrats engag[ed] in self-conscious acts of constitutional creation that rivaled the Founding Federalists’ in their scope and depth.”). ↑
  12.  See David A. Strauss, The Living Constitution 115–39 (2010). ↑
  13.  For discussion, see Daniel Taylor Young, How Do You Measure a Constitutional Moment? Using Algorithmic Topic Modeling to Evaluate Bruce Ackerman’s Theory of Constitutional Change, 122 Yale L.J. 1990, 1993–96 (2013). ↑
  14.  Compare 1 Ackerman, supra note 11, at 266–67 (describing four necessary stages: signaling, proposal, mobilized public deliberation, and codification), with 3 Bruce Ackerman, We the People: The Civil Rights Revolution 44–46 (2014) (advancing a more complicated process of signaling, proposal, a triggering election, mobilized elaboration, a ratifying election, a consolidating phase, and a return to normal politics). ↑
  15.  See, e.g., J.M. Balkin, Agreements with Hell and Other Objects of Our Faith, 65 Fordham L. Rev. 1703, 1729 (1997) (describing “off-the-wall” interpretations of the Constitution as those which are “clearly unpersuasive at any given point in time, given the political and professional consensus of opinion”); Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 179–83 (2011) (developing “off-the-wall” versus “on-the-wall” as “a convenient shorthand for a more complicated array of views—call it the ‘spectrum of plausibility’—that well-socialized lawyers might have about a constitutional claim”). We are particularly taken by this illuminating (and charming) comment:[M]y own judgment about what is “on the wall” and what is “off the wall” . . . is slowly but surely moving out of the mainstream . . . . My sense of what is possible and plausible, what is competent legal reasoning and what is simply made up out of whole cloth is probably mired in an older vision of the Constitution that owes much to the Warren and Burger Courts as well as to the predominantly liberal legal academy in which I was educated, trained, and now teach.

    Jack M. Balkin, Bush v. Gore and the Boundary Between Law and Politics, 110 Yale L.J. 1407, 1446 (2001). ↑

  16.  See, e.g., John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 50–51 (1980). ↑
  17.  More precisely, by legal elites we mean members of Congress, the executive branch, the judiciary, the bar, and the legal academy. In some areas, say, when states are trying to drive constitutional change, what state officials say and do will matter as well. ↑
  18.  We are grateful to Lawrence Solum for help with this paragraph. Consider here Brown v. Board of Education, much criticized in its time, but now taken for granted by all sides. Brown has been canonized by all. We briefly discuss the contemporaneous critique of Brown below, noting that our discussion might be revealing to those who believe that the decision was obviously right. In our view, matters are far more complicated. See infra Section I.B. ↑
  19.  Our discussion of the rise and fall of constitutional theories intersects with Philip Bobbitt’s constitutional modalities. See Philip Bobbitt, Constitutional Fate: Theory of the Constitution 7 (1982). It is possible that some theories of constitutional interpretation (e.g., a concern for discrete and insular minorities) reflect a focus on ethical arguments, and that other theories (say, originalism) exalt text and history. Most theories of interpretation are pluralistic in the sense that they rely upon more than one of Bobbitt’s modalities. While Bobbitt believes that each of his modalities is an appropriate method of interpretation, we wonder whether his work mostly reflects the particular factors that seemed especially relevant at the end of the twentieth century. ↑
  20.  For a vivid example, see James Jackson Kilpatrick, The Southern Case for School Segregation 105 (1962). ↑
  21.  See the discussion of Burke, infra Section II.B. ↑
  22.  See Learned Hand, The Bill of Rights: The Oliver Wendell Holmes Lectures, 1958, at 55 (1958); Kilpatrick, supra note 20, at 165–66. ↑
  23.  The term “epistemic communities” emerged out of and is most often used in the field of international relations in ways that overlap with but are more specific than our usage here. For overviews of the concept as it developed in international relations, see Peter M. Haas, Introduction: Epistemic Communities and International Policy Coordination, 46 Int’l Org. 1, 3 (1992); Peter Haas, Epistemic Communities, in The Oxford Handbook of International Environmental Law 698, 698–701 (Lavanya Rajamani & Jacqueline Peel eds., 2d ed. 2021). For a valuable account of how people know what they know, with an emphasis on epistemic limits, see generally Russell Hardin, How Do You Know? The Economics of Ordinary Knowledge (2009). In law, see Kerstin von Lingen, Epistemic Communities of Exile Lawyers at the UNWCC, 24 J. Hist. Int’l L. 315, 316–17 (2022) (discussing epistemic communities among lawyers). ↑
  24.  See Jamal Greene, The Anticanon, 125 Harv. L. Rev. 379, 380 (2011) (“[T]he project of identifying the Supreme Court’s worst decisions is not solely a normative one. There is a stock answer to the question, not adduced by anyone’s reflective legal opinion but rather preselected by the broader legal and political culture. . . . [These cases] are the American anticanon. Each case embodies a set of propositions that all legitimate constitutional decisions must be prepared to refute.”). ↑
  25.  Max Planck, A Scientific Autobiography (1948), reprinted in Scientific Autobiography and Other Papers 13, 33–34 (Frank Gaynor trans., 1950). ↑
  26.  Pierre Azoulay, Christian Fons-Rosen & Joshua S. Graff Zivin, Does Science Advance One Funeral at a Time?, 109 Am. Econ. Rev. 2889, 2889 (2019). We are pleased to report that the authors of this article are all alive. ↑
  27.  An intriguing account of two such movements, focused on James Baldwin and William F. Buckley Jr., is Nicholas Buccola, The Fire Is Upon Us: James Baldwin, William F. Buckley Jr., and the Debate Over Race in America (2019). Baldwin’s movement, as we might call it, had serious consequences for constitutional law in the 1960s and 1970s, as did Buckley’s decades later. There are stories to tell there, but we will not tell them here. ↑
  28.  Reva B. Siegel, Text in Contest: Gender and the Constitution from a Social Movement Perspective, 150 U. Pa. L. Rev. 297, 345 (2001) (“Over the life of the Republic, social movements have played a significant role in shaping constitutional understandings.”); Robert C. Post & Reva B. Siegel, Legislative Constitutionalism and Section Five Power: Policentric Interpretation of the Family and Medical Leave Act, 112 Yale L.J. 1943, 1945–47, 1950 (2003). See generally William N. Eskridge, Jr. & Christopher R. Riano, Marriage Equality: From Outlaws to In-Laws (2020) (discussing the gay rights movement). ↑
  29.  See William N. Eskridge, Jr., Brian G. Slocum & Kevin Tobia, Textualism’s Defining Moment, 123 Colum. L. Rev. 1611, 1612 (2023) (describing textualism as creating a “revolution in statutory interpretation”). ↑
  30.  See Seila L. LLC v. CFPB, 140 S. Ct. 2183, 2202–03 (2020); see also Cass R. Sunstein & Adrian Vermeule, The Unitary Executive: Past, Present, Future, 2020 Sup. Ct. Rev. 83, 105–10 (2021) (discussing Seila Law’s implications for the future of unitary executive theory). ↑
  31.  See Goldberg v. Kelly, 397 U.S. 254, 264–65 (1970); see also Frank I. Michelman, The Supreme Court, 1968 Term—Foreword: On Protecting the Poor Through the Fourteenth Amendment, 83 Harv. L. Rev. 7, 9 (1969) (describing the “judicial ‘equality’ explosion” and positing that the Court’s interventions in the mid-twentieth century were “mainly designed to move us towards a condition of economic equality,” with an emphasis on a decent minimum for all). ↑
  32.  A vivid example is Goldberg, 397 U.S. at 262 n.8, which pointedly cited Charles A. Reich, Individual Rights and Social Welfare: The Emerging Legal Issues, 74 Yale L.J. 1245, 1255 (1965), and Charles A. Reich, The New Property, 73 Yale L.J. 733 (1964). ↑
  33.  See infra notes 295–96. ↑
  34.  Protecting the Meaning and Value of American Citizenship, Exec. Order No. 14,160, 90 Fed. Reg. 8449 (Jan. 29, 2025). ↑
  35.  See Ronald Dworkin, Law’s Empire, at vii (1986). ↑
  36.  See John C. Calhoun, The South Carolina Exposition (1828), reprinted in 6 The Works of John C. Calhoun 1, 38–39 (Richard K. Crallé ed., N.Y., D. Appleton & Co. 1855). ↑
  37.  See Ely
    ,

    supra note 16, at 181. ↑

  38.  There are two more limits on our project: First, we say nothing about how constitutional change fits within the broader question of legal change. Second, we do not address the role that technology plays in constitutional change. ↑
  39.  For an early recognition of the change, see Lawrence B. Solum, How NFIB v. Sebelius Affects the Constitutional Gestalt, 91 Wash. U. L. Rev.
    1

    , 2–4 (2013). Solum’s account is broadly compatible with ours. ↑

  40.  Thankfully, one may accept our framework even if one concludes that the Roberts Court has been incrementalist. Skeptics of our claim might argue that the number of overrulings remains limited. For instance, according to Jonathan Adler, the Roberts Court has been far more respectful of precedent as compared to the Warren and Burger Courts. See Jonathan H. Adler, The Restrained Roberts Court, Nat’l Rev. (July 13, 2023, 2:17 PM), https://www.nation‌alreview.com/magazine/2023/07/31/the-restrained-roberts-court/. Other skeptics might say that while doctrine has changed, the real world has not changed all that much. For example, one might claim that Dobbs has not much affected the number of abortions and that SFFA has not much changed the racial composition of entering college classes. (These are of course empirical issues.) Further, one might say that the ultimate impacts are uncertain because the Court has not fully specified the criteria that lower courts must apply.But let us be stubborn: the landscape of constitutional law looks dramatically different from what it was in (say) 2007, for even if the number of precedents overturned remains relatively low, the sheer magnitude of these changes cannot be gainsaid. The rise of Second Amendment rights; the embrace of a unitary executive; the protection of commercial advertising; the growing solicitude for free exercise claims; the emphasis on textual, originalist, and historical methodology (whether consistently applied or not); the repudiation of the idea that courts should defer to agency interpretations of ambiguous statutes (an abandonment rooted in Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803))—all this signals that something is happening here. We know what it is, Mr. Jones.

    To offer a bit more detail, the discarding of Roe and Casey is a monumental change. Roe had shaped people’s perceptions of the Constitution and the Court. Positive Views of Supreme Court Decline Sharply Following Abortion Ruling, Pew Rsch. Ctr.

    (Sept. 1, 2022), https://ww‌w.pewresearch.org/politics/2022/09/01/positive-views-of-supreme-court-decline-sharply-foll‌owing-abortion-ruling/ [https://perma.cc/DPQ4-AF2P]. Its termination via Dobbs is a watershed, even if most states permit abortion. Furthermore, Dobbs signals a significant change in the operation of “substantive due process.” The focus on (relatively) ancient history and traditions signals that this Court frowns on the use of the two Due Process Clauses as twin engines of constitutional innovation. Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228, 2248 (2022). Likewise, the discarding of Grutter v. Bollinger, 539 U.S. 306 (2003), clearly signals that another transformation is afoot. Students for Fair Admissions, Inc. v. President & Fellows of Harvard Coll., 143 S. Ct. 2141, 2170–75 (2023). SFFA is momentous because it overturned a highly permissive regime, one in which colleges could use race in their admissions. It is reasonable to think that SFFA will eventually affect admissions and class composition, as colleges get sued for flouting its constraints. SFFA also will spur, and is spurring, suits against the use of race in governmental employment, contracting, and funding, with courts likely to strike down some or many such programs. See, e.g., Julian Mark & Aaron Gregg, Federal Judge Halts Disaster Aid Program for Minority Farmers, Wash. Post (June 10, 2024), https://www.washingtonpost.com/business/2024/06/10/usda-minority-farmers-injunct‌ion/ (discussing an equal protection suit brought against the Agriculture Department and other such lawsuits); Anemona Hartocollis, Northwestern Law School Accused of Bias Against White Men in Hiring, N.Y. Times (July 2, 2024), https://www.nytimes.com/2024/07/02/us/aff‌irmative-action-lawsuit.html (discussing a Title IX suit and the impact of SFFA). And as mentioned earlier, there are other major changes afoot, regarding free exercise, the Establishment Clause, standing, takings, and more. ↑

  41.  See, e.g., Vought, supra note 5 (calling for the right “to throw off the precedents and legal paradigms that have wrongly developed over the last two hundred years”). ↑

  42.  Some colleagues have made to us a more radical point (pun intended): constitutional change is never truly radical unless one witnesses undeniably revolutionary change. The French and Russian Revolutions yielded radical constitutional change; without such a transformation in constitutional fundamentals, there is no paradigm shift. Because radical change is necessarily contextual, we can see why some, particularly those focused on comparative constitutional law, might suppose that none of the changes that America has experienced is radical. But within the American context, we believe that there have been many paradigm shifts that have transformed how we see and implement our Constitution. What can be radical for America may be humdrum elsewhere. May it always be so. ↑

©Virginia Law Review Association. All rights reserved.