This series for SCOTUSblog will recount two decades of constitutional change through the five editions of our casebook, the first published in 2008 and the latest to be published this December.

Lawyers tend to internalize the constitutional law that existed when they attended law school. Consider a lawyer who took the course in the spring of 2005, a few months before the Rehnquist court adjourned for the last time. That lawyer learned that the Constitution protected a right to abortion, that a university could consider an applicant’s race to assemble a diverse class, that courts identified an establishment of religion by applying what is known as the Lemon test, and that Congress could protect the members of an independent agency like the Federal Trade Commission from removal by the president. None of these four propositions accurately state the law today. That lawyer probably also learned nothing about the Second Amendment, which the court had not interpreted since United States v. Miller in 1939. Yet since District of Columbia v. Heller in 2008, the court has decided six major Second Amendment cases.

We have followed these changes from an unusual vantage point. Our casebook, “Constitutional Law: Cases in Context,” has gone through five editions: the first in 2008, the second in 2013, the third in 2017 (when Blackman joined), the fourth in 2021, and the fifth, which will be published this December. Casebook editors work within a fixed page budget. For every case we add, we must shorten or remove another, so each edition records a judgment about which cases a student must now read. In this new series, we will discuss what has changed over the past two decades on the court. This first installment explains how much of the course has stayed the same. In the installments that follow, we take up each area of constitutional law in turn.

Between 1994 and 2005, the Supreme Court remained in a remarkable period of stability. For more than a decade, Stephen Breyer served as the junior justice on the longest “natural Court” in modern history. But with the death of Chief Justice William Rehnquist and the retirement of Justice Sandra Day O’Connor, 2005 would usher in the Roberts court. In the span of just five years, four new justices joined the court. And between 2016 and 2022, four more justices were added. Today, only Justice Clarence Thomas remains from the Rehnquist court.

This change in the court’s composition also led to sea changes in constitutional law. Dobbs v. Jackson Women’s Health Organization overruled Planned Parenthood v. Casey and Roe v. Wade, and arguably undermined Lawrence v. Texas and Griswold v. Connecticut. Students for Fair Admissions v. President and Fellows of Harvard College declared that race-conscious university admissions policies violate the equal protection clause and effectively overruled Grutter v. Bollinger. Kennedy v. Bremerton School District, Carson v. Makin, and Mahmoud v. Taylor reoriented the court’s entire religion clauses jurisprudence. Free speech also shifted, as conservatives in Moody v. NetChoice became more open to government regulation of speech platforms. Trump v. Slaughter completed the decade-long assault on 1935’s Humphrey’s Executor v. United States. The decade also saw an explosion of new Second Amendment cases, including New York State Rifle & Pistol Association, Inc. v. Bruen, Wolford v. Lopez, United States v. Rahimi, and United States v. Hemani. Then there were a host of Trump-specific cases. Trump v. United States expanded presidential immunity. Trump v. Barbara invalidated the president’s birthright citizenship order. Trump v. Cook reaffirmed the Federal Reserve's independence.

Many constitutional law professors have struggled with teaching these significant shifts in the law. Today, little remains of the landmark cases handed down at the tail end of the Rehnquist court, and much of the Burger court’s jurisprudence has been obviated. Still, despite all of these changes, a great deal has stayed the same. In 2024, we predicted that, “Even after accounting for the recent terms, our syllabus will be about ninety percent the same as it was in 2019.” After the Supreme Court’s 2025-26 term’s conclusion, we will probably need to lower our estimate to about eighty percent, but the general gist holds.

The narrative of American constitutional law stretches nearly 250 years. The first two centuries of this story have remained stable throughout all editions of our casebook and are unlikely to change in the future. This is one feature of using a casebook that adopts the narrative organization. The first part of every class remains largely unchanged, as students are first introduced to the canon and anti-canon.

The decisions of the Marshall court remain canonical and are the standards against which all other decisions are compared. Marbury v. Madison affirmed the Supreme Court’s role of reviewing the constitutionality of actions taken by other branches. McCulloch v. Maryland set the boundaries of Congress’ powers under the necessary and proper clause. Gibbons v. Ogden defined the scope of Congress’ powers under the commerce clause. Barron v. Baltimore held that the first ten amendments only limit federal power. And then are the court’s decisions concerning slavery. Prigg v. Pennsylvania upheld the draconian Fugitive Slave Act as a valid exercise of federal power. And Dred Scott v. Sandford ruled that people of African descent could never be citizens for purposes of law, even if they were full citizens of their state. The original structure of the Constitution was deeply affected by the preservation of slavery, and the 14th Amendment revised that structure as a result of resistance to slavery’s demise. Antislavery constitutionalism also introduced into constitutional discourse the schism between original intent and original meaning interpretive methods.

The Civil War brought several important disputes about the president’s war powers. Ex parte Merryman ruled that the president could not unilaterally suspend the writ of habeas corpus. The Emancipation Proclamation tested the constitutionality of President Abraham Lincoln’s order freeing certain slaves in rebel territories. The Prize Cases asked the Supreme Court to decide whether the Civil War was, in fact, a war. Decisions from the Reconstruction period established the formative interpretations of the 13th and 14th Amendments: the Slaughter-House Cases, Bradwell v. Illinois, and United States v. Cruikshank all narrowly read the privileges or immunities clause of the 14th Amendment. Later opinions defined the powers of state and federal governments regarding racial discrimination. Strauder v. West Virginia held that the federal Constitution prohibits segregated juries. But the Civil Rights Cases declared unconstitutional a federal anti-discrimination law for places of public accommodation. Yick Wo v. Hopkins found unconstitutional a restriction on laundry facilities that targeted Chinese aliens. And Plessy v. Ferguson ushered in the doctrine of “separate but equal.”

The Progressive Era struggled to define Congress’ powers under the commerce clause and the necessary and proper clause: United States v. E.C. Knight Co., Champion v. Ames, and Hammer v. Dagenhart. These rulings fluctuated over what sorts of activity Congress could regulate. That same Progressive Era court refined the scope of liberty protected by the due process clause with a slew of decisions, including Lochner v. New York, Muller v. Oregon, Meyer v. Nebraska, Pierce v. Society of the Sisters, and Buck v. Bell. These rulings – Buck v. Bell excepted – provided broad protection for both economic and social rights under the doctrine that would become known as substantive due process.