How Recent Supreme Court Rulings Reshape Constitutional Law Education and Practice

Randy Barnett and I are nearing completion of the Fifth Edition of our Constitutional Law casebook. We are still awaiting the final batch of cases from June to finalize a few chapters. Our last edition was published in 2021. Needless to say, a lot has changed, though much of the book remains the same.

This experience has reinforced the difference between how students are taught constitutional law and how practitioners see it on the ground. In the classroom, we read landmark decisions that reshaped U.S. law:

• Bruen established a rigorous test for reviewing gun control laws;
• Dobbs returned the abortion issue to state governments;
• Students for Fair Admission (SFFA) effectively eliminated affirmative action in higher education.

Students reading these 2022 and 2023 decisions might conclude that constitutional law changed overnight regarding guns, abortion, and racial preferences. The reality, however, is far more nuanced.

Gun Laws: Bruen’s Impact and Rahimi’s Reversal

Barely a year after Bruen, the Supreme Court’s decision in Rahimi walked back its “analogue” test. Despite initial expectations, gun laws have remained virtually unchanged. Blue states have permitted shall-issue carry regimes, but with numerous obstructions and burdens. The Court has also declined every case concerning the scope of sensitive places and the types of arms covered by the Second Amendment. The two cases argued this term—Hemani and Wolford—present fringe issues that will have little impact on gun owners.

Affirmative Action: SFFA’s Legacy and Evasion Tactics

Following SFFA, the Court declined to hear Boston Parent Coalition for Academic Excellence Corp. v. The School Committee For the City of Boston (2024), a case challenging an affirmative action policy at an elite public school designed to circumvent SFFA. Justices Thomas and Alito favored granting certiorari, while Justices Gorsuch, Kavanaugh, and Barrett remained silent.

A new report from the Manhattan Institute reveals that the admission rates for racial minorities at elite colleges have remained roughly the same, despite dire predictions from Harvard and other institutions. Justice Kagan’s hypothetical about zero Black students attending Harvard underscores the debate. These numbers suggest that universities developed ways to evade SFFA, though the data remains unclear. The Supreme Court is unlikely to re-engage in this issue.

Abortion Rights: Dobbs and the Rise of Shield Laws

After Dobbs, doctors began shipping mifepristone to red states, while blue states enacted shield laws to protect these providers. Although Dobbs returned abortion regulation to the states, pro-life states have been unable to stop the influx of abortion pills. In fact, there are now more abortions in red states than before Dobbs.

The shield law issue has not yet reached the Court, and I suspect the justices will avoid intervening. This evening, the Court once again declined to rule on mifepristone in Danco Laboratories v. Louisiana, issuing a 7-2 stay of the Fifth Circuit’s decision without explanation.