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Author: Justin Driver
Date: Apr. 2021
From: University of Pennsylvania Law Review(Vol. 169, Issue 5)
Publisher: University of Pennsylvania, Law School
Document Type: Article
Length: 29,433 words
Lexile Measure: 1870L

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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....

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Gale Document Number: GALE|A677878017