Carolyn Shapiro knows the Constitution. As co-director of Chicago-Kent College of Law’s Institute on the Supreme Court of the United States, her areas of academic study include the high court and its role in a society governed by this founding document.
For all attorneys, the Constitution “forms the frame of what we do in terms of protecting people’s due process rights, in terms of protecting people’s property rights, in terms of protecting people against different forms of discrimination,” she said. And in times of division and upheaval, she sees a need for lawyers to step up and champion its principles to the public.
“Right now, given the challenges of our current society, I think there’s a role for lawyers to play promoting the pro-democratic elements of the Constitution and working to explain their operations to the people around us,” she said. “That’s a crucial role that lawyers can and should play, even if that’s not necessarily what you do on a daily basis in your practice.”
We discussed the role of the Constitution in a changing society, both past and present.
Q. From a historical perspective, we think of this as a time of major change in society. How would you rank it in Constitutional terms?
A. We’ve definitely had times of intense change in the past, certainly the post-Reconstruction Era, the New Deal era and then in the ’50s and ’60s with the Civil Rights era. In all three of those time periods, we’ve had significant change in terms of how the Constitution was understood.
Today, I would say we may be seeing some changes along comparable lines, particularly if the Supreme Court overturns Roe v. Wade. We are already seeing states talking about passing laws that would punish their own residents for leaving the state to get an abortion in a state where it’s legal, or to help somebody go to a state where it’s legal.
And so that’s going to put some significant pressure on some aspects of the Constitution related to freedom of travel, what’s called horizontal federalism, having to do with the relationships between the states. So that could lead to a lot of change.
Q. How has the Constitution weathered other times of great change and what have we learned from those times?
A. In the post-Reconstruction Era, the Supreme Court cut back pretty significantly on congressional ability to protect recently enslaved and now-freed African Americans. There’s this period of time known as the Lochner era, which is primarily the early 20th century, very late 19th century, where the court was consistently striking down economic regulation, things like worker protections, child labor laws, minimum wage and worker safety regulations.
The court struck down those kinds of laws at the federal level by saying that they exceeded congressional power and at the state level by saying that they violated the due-process clause because they impeded people’s liberty of contract.
When the New Deal came along, the story everybody tells is that the pressure became so great to have economic regulations in place because they were so clearly needed. And there was a lot of political pressure, including President (Franklin D.) Roosevelt’s urging that Congress add seats to the court so that he could get his laws upheld. They were striking down laws on a 5-4 basis, and then one justice (Owen Roberts) sort of switched sides, and they started upholding these laws. So that pre-New Deal era I would say was pretty problematic.
Q. What are some examples of the Constitution in other transformative times?
A. Allowing for race consciousness is something that the Supreme Court has been extremely unwilling to do except in very specific situations. Brown v. Board of Education was an enormous step forward for the Constitution. But then in subsequent years, the Supreme Court made it very difficult both for courts and for local communities to address segregation.
But increasingly the Supreme Court has prohibited race consciousness on the part of government entities, and often private entities when they’re pursuant to statute.
The Supreme Court has taken up affirmative action for next term, and it seems quite plausible that they’re going to eliminate the last amount of legally permissible race consciousness in at least college admissions. (Students for Fair Admissions v President and Fellows of Harvard and Students for Fair Admissions v. University of North Carolina). I think personally that’s not a good reading of the Constitution. There’s a lot of work we still have to do as a country in terms of race, and eliminating the government’s ability to address that in my view is a significant problem.
Q. What other current cases reflect the notion of the Constitution in a changing society?
A. The OSHA case about vaccines. (National Federation of Independent Business et al v. Department of Labor, Occupational Safety and Health Administration.) At least some of the justices in that case thought that the fact that Congress had passed this law that gives OSHA the power to regulate for the general protection of workers should not be interpreted to cover this moment of the pandemic because this pandemic is pretty much unprecedented.
The argument is what they call a major questions doctrine: If it’s a really big deal, something that’s a massive economic consequence, like a vaccine mandate, we’re going to presume that Congress did not delegate the decision to an agency unless they said it really explicitly.
There’s a lot I could say about why that’s wrong. That’s not necessarily intrinsically a Constitutional question. It’s sort of a question of statutory interpretation. But it is sort of predicated in part on a Constitutional argument. It’s called the non-delegation doctrine, which prohibits Congress from delegating too much discretion or legislative authority to agencies.
Non-delegation doctrine has not been relied on to strike down a law since before the New Deal. There are now probably five justices of the court who would like to revive it.
And that would very much hamper the ability of the federal government to operate the way it has long operated, which is by Congress providing relatively broad grants of authority to administrative agencies and then telling administrative agencies to use their own expertise to regulate as appropriate, and also to change the regulation as circumstances change in order to meet the goals that Congress has identified. Depending on how robustly revived non-delegation doctrine is, it would really hamper the ability of the federal government to operate that way.
Q. How does the interpretation of the Constitution evolve as different generations join the Court?
A. One of the problems with life tenure on the Supreme Court is that to the extent that there is generational change, it very much lags. You have people who serve on the court for decades, and by the time they leave the court, they tend to be quite old. They either retire or die. And so really any generational change is going to really lag significantly behind the rest of society just for that reason alone.
Some people might argue that that’s a good thing, because part of what’s good about our system of law is stability, but you can have too much of a good thing. I also tend to think that within each generation, especially within the legal profession, there are plenty of divisions, so the generational identity may not be the most important marker.
Q. You were a clerk for Justice Stephen Breyer. What was your reaction when he announced his retirement?
A. I expected the announcement to come at the end of the term, not in the middle, but I was really not surprised. Justice [Ruth Bader] Ginsburg tended to talk about the seat as if it were hers, basically, and Justice Breyer didn’t usually talk about it that way. He thought about the seat more as a job of service.
Q. How do you think Ketanji Brown Jackson will perform on the Supreme Court?
A. You can’t write a resume that demonstrates more brilliance and qualifications for the job. It’s always a little hard to know beforehand what kind of a justice someone will be, because even if they’ve been on the bench, being on the bench and being a justice and even being an appeals court justice are just different types of jobs. But I have a lot of faith in her judgment and in her wisdom and intelligence.
Q-and-As are edited for length and clarity.