Constitutional Law Updates for 2023: What Are They and What to Do About Them?

There were two recent major changes in constitutional law—based on Kennedy (2022) “abandoning” the Lemon test and based on Dobbs (2022) revising abortion’s status as a fundamental right.

First, note that the NCBE drafts and pre-tests questions years in advance. See these NCBE statements about the MBE and the MEE. These statements are in turn linked in this NCBE statement about the 2022 SCOTUS decisions and the bar exam.

Probably a similar story for essays in various jurisdictions, though each state may do it differently.

This means that you might see questions in these areas and get credit for currently correct answers, or they might replace the questions with backups or something. Who knows.

I think it’s unlikely you’ll encounter questions in these areas. But you can control how to respond if you do see these issues.

What’s Kennedy about anyway?

It affects a legal test relating to the establishment clause, which was previously controlled by the Lemon test.

In Kennedy, a high school football coach (Joseph Kennedy) had a post-game prayer practice. He stopped it after the school expressed concerns but continued some other rituals like midfield prayers. He said he didn’t expressly invite his students—or others—to join his later post-game prayers. He was placed on paid administrative leave.

SCOTUS held that this was OK because the coach’s prayers “were not publicly broadcast or recited to a captive audience,” and students were not “expected to participate.”

Check out more details of the case and how it distinguishes from practices previously held invalid: https://crsreports.congress.gov/product/pdf/LSB/LSB10780 (see page 1 for the facts, and pages 3 and 5 for the legal holding).

What’s Dobbs about?

Abortion is no longer a fundamental right under substantive due process. Therefore, the standard for government regulation of abortion is no longer strict scrutiny. And regulation is passed onto each individual state.

That’s kind of all we need to know for the bar exam: Don’t use SS to evaluate any gov’t abortion regulation. What the constitutional standard is now is unclear. But perhaps other aspects such as “undue burden” still apply.

In navigating any essays asking you to discuss (again very unlikely), use your best reasoning and sensibility from available information to arrive at arguments according to legal basis, not personal opinions.

I had not included any updates to abortion matters until January because the law is unclear and may be in flux. But too many people kept asking about this unlikely scenario, so here we are.

How to address the new Con Law decisions in a bar exam essay or on the MBE

The implication from the NCBE statement seems to be that they won’t test on those areas any time soon. But I did want to acknowledge the possibility that they may still appear and what to do about them.

In an essay, you might want to mention both tests.

An example approach might be to introduce the Lemon test and analyze it briefly (time allowing) but then talk about how the “coercion test” under Kennedy replaces Lemon. Basically, use the old bar law as a base and almost treat the new law as an exception or defense counterargument.

If you ever see this in an MBE question, answer according to current law. But again, it’s very unlikely that they’ll deliberately ask you about an outdated area of law, at least in 2023.

Worry about the 200 other areas they can test you on.