Picture the scene: It’s the summer after I graduated from law school and a day that ends in y, which means I’m currently hunched over a workbook, attempting to answer practice questions for the multistate bar exam. Such cramming for the bar is a universal rite of passage in the legal field—one that every lawyer in America remembers going through. But right now, law school graduates across the country are experiencing the ordeal a little differently. Because this year, a lot of the laws we are trying so hard to memorize are, as of just a few weeks ago, no longer actually the law.
I turn the page in my practice test booklet and read the next question: “A state adopted legislation making it a crime to be the biological parent of more than two children. A married couple has just had their third child. They have been arrested and convicted under the statute. Which of the following is the strongest argument for voiding the convictions of the couple?”
I scan the choices. It’s clear that “B” is the right answer: “The statute places an unconstitutional burden on the fundamental privacy interests of married persons.”
Or, well, “B” used to be the right answer. It was the right answer when we graduated from law school at the end of May. It was the right answer through most of June, as we studied the elements of substantive due process—the principle that the Fifth and Fourteenth Amendments protect fundamental rights from government interference, like the rights to personal autonomy, bodily integrity, self-dignity, and self-determination. For decades, these interests formed the outline of a constitutionally protected right to privacy, whose framework we’ve spent the summer copying onto flashcards and trying to recount in practice essays.
But this substantive due process right to privacy was just dealt a body blow by the Supreme Court’s ruling in Dobbs v. Jackson that the U.S. Constitution does not confer a right to abortion. As I think about the 10-year-old rape victim in Ohio who was recently denied an in-state abortion and all the other lives that will soon be shattered by this dramatic rewriting of the law, it’s hard to give a damn about the practice test in front of me.
Still, the bar’s only a few weeks away, and honestly, if I keep getting sucked into panic attacks about judicial coups I’m not going to pass. So I force myself to keep going. I answer a contracts question and fumble my way through a property problem. Then, turning the page, I read: “A state legislature enacted a program by which students in the public schools could participate in public school programs in which religious leaders gave religious instruction and performed religious practices on school grounds. Which of the following would NOT be relevant in assessing the constitutionality of the state religious instruction program?”
I look through the choices. I’m pretty sure the correct answer is “D,” the only option that doesn’t describe an element of the analysis (established 50 years ago in Lemon v. Kurtzman) for determining whether a state has violated the constitutional prohibition against government “respecting an establishment of religion.” But a few weeks ago, after every law school graduate in the country had memorized the three-part Lemon test, the Supreme Court effectively overruled Lemon v. Kurtzman, decreeing in Kennedy v. Bremerton School District (the praying coach case) that courts will henceforth decide whether a government has entangled church and state “by reference to historical practices and understandings.” Which, it seems likely, means whatever the court’s conservative majority wants it to mean—for example, I very much doubt that the Jewish women challenging anti-abortion laws for violating Judaism’s teachings on reproductive choice will get the same response Coach Kennedy received for coercing children into praying to Jesus with him on the 50-yard line after their games.
Still, I can’t focus on that big picture right now. The multiple-choice portion of the bar exam gives you six hours to answer a barrage of 200 questions, which means you have just 108 seconds per inquiry before you have to move on to the next one. That doesn’t leave much time to reconcile our government’s ongoing shift toward Christian theocracy.
So I try to get back into test-taking mode. Next up there’s a criminal procedure question about—ahh, fantastic—Miranda rights, which the Supreme Court severely undermined this term in Vega v. Tekoh. And the hits keep on coming: Next there’s a question on the “case or controversy” requirement laid out under Article III of the Constitution, stipulating that federal courts only have the power to resolve legal questions arising out of an actual dispute between real parties. That’s been a basic principle of judicial review since 1793, and yet I know that the multiple-choice option I mark for correctly stating this rule completely contradicts the Supreme Court’s disastrous climate decision in West Virginia v. EPA—a case over an environmental regulation that never took effect, no longer exists, and never created any real dispute between actual parties. Then I drop my pencil and put my head in my hands.
Obviously, the worst thing about the Supreme Court’s nihilistic legislating from the bench is not its demoralizing effects on law school grads studying for the bar. (Besides, the National Conference of Bar Examiners recently put out a statement saying, “Examinees taking the [July 2022 bar exam] will not be required to be familiar with this term’s U.S. Supreme Court decisions.”) The problem is that a handful of radical justices—two of whom sit in stolen seats; half of whom were appointed by a president who lost the popular vote—are waging an increasingly scorched-earth war against our most fundamental rights and protections.
Still, it says a lot about the legal and political crises we are facing in the U.S. today that, in order to practice law, every newly licensed attorney in the year 2022 has to take an exam testing their grasp of legal principles that are no longer legal and laws that are no longer the law. That an unelected panel of ideological extremists could change so many critically important pieces of America’s legal architecture overnight—radically remaking our laws on abortion, separation of church and state, climate change, the rights of criminal defendants, Native American sovereignty, gun control, the capacity of the administrative state to keep us safe, and more—all with zero input from or accountability to the American people, demonstrates how completely unmoored this court is from the principles of democratic governance.
What’s more, it raises fundamental questions about the meaning of “the rule of law” in America today. This concept has been a foundational premise (perhaps, in our own mythmaking at least, the foundational premise) of American government since our founding—that we are, as John Adams put it, “a government of laws, not of men.” The whole point of centering a system of government on the rule of law is to prevent the arbitrary use of state power. Yet as I sit here studying for the entry exam to our legal system, a significant portion of which was made obsolete overnight thanks solely to the whims of six unelected individuals and the extremely minoritarian movement they answer to, America’s government isn’t feeling very “of laws, not men” to me.
There’s a bit from the comic strip Calvin and Hobbes that’s recently entered the legal lexicon: Calvinball. Calvinball is a game that has no actual rules; in the comic, Calvin and Hobbes just make up the rules as they play. It’s a perfect metaphor for what constitutional law has become in this country. The conservative court majority has abandoned consistency, precedent, fact, basic constitutional mechanics, and any notion of accountability to the public. Instead, the most important laws affecting our health, our families, our freedoms, and our future are being dictated according to a few extremists’ partisan preferences (and even, at times, their naked self-interest). We are losing the rule of law. And though this loss is strikingly apparent in this month’s bar exam—whose black-and-white nature makes it particularly clear that broad swathes of our long-standing legal traditions have been vaporized—the real evidence is the countless lives that have or will be destroyed by climate chaos, forced pregnancies, gun violence, authoritarian power grabs, and all the other horrors created by such an arbitrary system of government.
This is a five-alarm crisis for our democracy, and it won’t take care of itself. It requires an all-out response—not staid platitudes and admonitions to vote, but actual short-, medium-, and long-term strategies to build and wield power to constrain this rogue court and contest the far right’s stranglehold on our judiciary—by every leader, organization, and community that believes in the republic.
But I guess I can think about that later. For now, I’ve got this practice exam to finish.
