THE SUPREME COURT AS BAD TEACHER.

• Author: Driver, Justin

Since the 1950s, prominent constitutional law professors have often invoked the notion that the Supreme Court acts as an educational institution in American society. On this view, legal scholarship portrays the Supreme Court as a beneficent and inspirational teacher, one who is responsible for imparting unusually enlightened values on the nation. Despite this uplifting analogy's prevalence within constitutional discourse, two persistent criticisms have unsettled the notion that the Supreme Court in fact teaches any lessons at all through its written opinions. First, critics observe that citizens are generally unaware of even highly salient Supreme Court opinions, and it is hard for people to obtain a lesson from something they do not know. Second, critics note that claims extolling the Court's educational capacities unfold almost exclusively on an abstract level, rendering it virtually impossible to determine whether anyone has absorbed the Court's ostensible lessons and how that absorption occurred.

This Article aims to revive and recast the notion that the Supreme Court educates by approaching the matter from a fresh vantage point. Rather than proceeding from the standard premise that the Supreme Court teaches good lessons, this Article inverts the inquiry by identifying and examining three opinions where the Supreme Court has taught bad lessons: Buck v. Bell's validation of compulsory sterilization statutes; Minersville School District v. Gobitis's validation of requirements that students salute the American flag; and New York v. Belton's validation of police officers conducting warrantless searches of vehicles when they arrest motorists. Instead of simply asserting that the Supreme Court taught bad lessons in these three opinions, the Article offers specific evidence to defend that claim and also addresses the two primary criticisms of the view contending that the Court can educate. First, rather than suggesting that the Court taught citizens generally throughout the nation when it issued these opinions, this Article narrows the focus to identify particular subsets of the population that the opinions reached and influenced. Second, instead of offering merely abstract interpretations of how these opinions taught, this Article provides detailed historical accounts that identify and examine three particular mechanisms through which students responded to the Court's bad teaching. Building on work exploring the phenomenon that political scientists refer to as "policy diffusion," this Article demonstrates that the Supreme Court's bad teachings led policymakers around the country to learn, emulate, and extrapolate from those opinions. Examining the Supreme Court's bad lessons also better positions scholars to appreciate how the Supreme Court has taught well, both by helping desirable policies become more widespread and by suppressing undesirable policies. This reconceptualization of the Supreme Court's teaching role challenges ascendant theories in legal scholarship asserting that the judiciary interprets the Constitution merely to ratify the nation's consensus values and that it lacks the ability to implement significant social reform.

INTRODUCTION 1367 I. BACKGROUND 1376 A. Sterilizations 1376 B. Salutes 1380 C. Searches 1384 II. EXPLORATIONS 1387 A. Learning 1391 1. Sterilizations 1391 2. Salutes 1393 3. Searches 1395 B. Emulating 1398 1. Sterilizations 1398 2. Salutes 1402 3. Searches 1404 C. Extrapolating 1405 1. Sterilizations 1405 2. Salutes 1406 3. Searches 1409 III. GOOD TEACHING REVISITED 1411 A. Good Policy Diffusion 1411 B. Bad Policy Suppression 1415 IV. IMPLICATIONS 1417 A. Judicial Latitude 1417 B. Judicial Fragility 1421 C. Metaphors Matter 1423 CONCLUSION 1428 INTRODUCTION

In 1952, Eugene Rostow formulated what would become an enduring metaphor within legal circles for describing the Supreme Court's role in American life. (1) "The Supreme Court is, among other things, an educational body, and the Justices are inevitably teachers," Rostow contended. (2) During the intervening seven decades, distinguished legal theorists holding a diverse array of competing intellectual commitments have embraced Rostow's general concept that the Supreme Court is an educational institution. (3) Alexander Bickel, Robert Bork, Christopher Eisgruber, Jack Goldsmith, Lani Guinier, Neal Katyal, Ralph Lerner, Daryl Levinson, Sanford Levinson, Carol Steiker, Cass Sunstein, Laurence Tribe, Mark Tushnet, and Robin West represent only a fraction of the many scholars who have entertained the notion that Supreme Court opinions can, in one way or another, educate. (4) Rostow's metaphor has reached beyond academia, moreover, as prominent judges have portrayed themselves as educators. To take only the foremost example, Justice Anthony Kennedy once proclaimed: "Judges are teachers. By our opinions, we teach." (5)

Although the educational metaphor has received acclamation from on high, the enthusiasm has not been universal. Scholars have leveled two persistent, related lines of critique against the notion that the Supreme Court educates. First, critics have cast doubt on the Supreme Court's ability to teach lessons by noting that citizens--the Court's presumed pupils (6)--demonstrate little awareness of even highly salient judicial opinions. (7) As early as 1970, scholars quipped that if the Justices were teaching a class "it is a sad fact that few Americans are enrolled in the course." (8) Although this joke debuted more than fifty years ago, it seems to never grow old, as professors have repeatedly offered slight variations on the theme. (9) Second, critics have protested that, because claims about the Court's educational role proceed on an almost exclusively theoretical plane, no evidence exists for evaluating whether the Court's ostensible lessons actually have been acquired. (10) Proponents of the educational metaphor, critics maintain, blithely assert that the Court teaches through its opinions without endeavoring to explain with any precision how that educational process transpires.

These two criticisms contain undeniable force. They should not, however, be understood to extinguish the educational metaphor's utility altogether. In order to appreciate how the educational metaphor retains vitality, it seems advisable to approach the issue from a fresh perspective. Scholars who have thus far explored this matter have overwhelmingly viewed the Supreme Court as a beneficent teacher, a knowledgeable and wise leader who imparts enlightened values on society. Rostow's initial formulation embodied this exalted notion of the teacher, as he unveiled the metaphor in the context of suggesting that recent Court opinions had taught the nation invaluable lessons on racial equality. (11) For Rostow, these opinions exerted an "immensely constructive influence" in spurring the nation to a richer comprehension of its constitutional and even its "moral" obligations toward Black citizens. (12) Modern scholarship continues to endorse this exalted view, construing the Court as an "inspirational" (13) teacher, one who "leads the people of the United States to a deeper understanding of our constitutional commitments." (14) When the Supreme Court teaches, this narrative runs, it invariably teaches well.

Not all teaching, however, is good teaching. This Article inverts the standard approach by identifying and analyzing instances when the Supreme Court teaches a lesson, but imparts the lesson badly--instances, that is, when the Supreme Court has been a bad teacher. Bad teaching from the Supreme Court may arrive in a variety of different forms. (15) The type that I explore here, however, concerns what is perhaps the foulest form of all: the teacher who conveys the material in a substantively erroneous fashion. To select an almost painfully simple illustration of the phenomenon I will examine, consider a first-grade teacher who publicly commends a pupil for arriving at the conclusion that 2 + 2 = 5, a lesson that succeeds only in spreading inaccurate information throughout the class. In a similar vein, the Supreme Court sometimes issues opinions validating unconstitutionally repressive policies, and in the process transmits incorrect lessons about our constitutional order that subsequently become prevalent throughout the nation. In so doing, the Court provides instruction that not only fails to edify, but affirmatively misinforms.

The Supreme Court's bad teaching can be witnessed by examining the aftermaths of three notable opinions, each arising from a distinct temporal and constitutional context. (16) In Buck v. Bell, the Supreme Court authorized Virginia's compulsory sterilization statute, denying challenges under the Fourteenth Amendment's Due Process and Equal Protection Clauses. (17) In Minersville School District v. Gobitis, the Supreme Court authorized a Pennsylvania school to expel Jehovah's Witness students for refusing to salute the American flag, rejecting a challenge under the First Amendment. (18) In New York v. Belton, the Supreme Court authorized a police officer's warrantless search of a vehicle when he arrested occupants, rebuffing a challenge under the Fourth Amendment. (19) Formally, Buck, Gobitis, and Belton merely permitted--and did not require--policymakers to enact compulsory sterilization statutes, adopt mandatory flag salute measures, and execute warrantless searches of vehicles upon arresting motorists. But in the wake of these decisions, all three policies became dramatically more widespread, as the Court's teachings stimulated successive waves of reform. In all three of these contexts, moreover, the Supreme Court ultimately recognized its bad teaching, by either outright reversing course or dramatically retreating from its prior decisions. (20) Although the Supreme Court can certainly issue opinions teaching bad lessons that it never officially recognizes as such, the Court's recognition in these three contexts...