The Meaning of 2008-- Partisan Entrenchment or Constitutional Moment?

JB

Tom Goldstein probably doesn't realize it, but his very interesting analysis of the effect of the 2008 election on the Supreme Court makes the case for Sandy Levinson's and my theory of partisan entrenchment in contrast to my friend and colleague Bruce Ackerman's theory of constitutional moments.

Let me explain.

Bruce Ackerman has famously argued that constitutional revolutions occur as a result of significant mobilizations by the American people over a relatively short space of time. After a triggering event, a national election signals a major constitutional transformation, and a further election ratifies the fact that a transformation has occurred, followed by acceptance of the new constitutional regime by the losing side. In Ackerman's view, constitutional transformations occur because Americans self-consciously choose them, and then signal and ratify these transformations through key elections which are "about" whether to proceed with the transformation.

By contrast, Sandy Levinson and I argue that constitutional transformations occur through the cumulative effects of what we call "partisan entrenchment," in which Presidents stock the federal judiciary with like-minded jurists. If a party can make enough appointments in a sufficiently short space of time, doctrines start to change. Our theory assumes that there are many contingencies in this process: for example, Presidents sometimes make mistakes in who they appoint. Moreover, the membership and ideological coherence of political parties shift over time, so that even if a party appoints every open Supreme Court seat from 1968 through 1993 (as the Republicans did) changes in the party's coalition may prevent a clear ideological transformation of doctrine. (Thus, even though Harry Blackmun and John Paul Stevens were centrist Republicans in 1969 and 1975, respectively, they are well to the left of the contemporary Republican coalition).

Unlike Ackerman, we also argue that the process of constitutional change may be quite gradual and that the public does not have to engage in self-conscious referenda on constitutional transformation. Moreover, we do not assume that the effects of partisan entrenchment are necessarily legitimate, only that they keep the Supreme Court roughly in sync with the dominant national coalition. Ackerman, by contrast, believes that constitutional moments are legitimate amendments to the Constitution outside of Article V.

Both we and Ackerman agree that if the public keeps returning a party to the White House, eventually this will result in changes in constitutional doctrine. For Ackerman, however, something more is needed-- a self-conscious mobilization on the part of the electorate demanding a constitutional transformation. Our explanation of the New Deal transformation is that the public kept reelecting Franklin Roosevelt to the White House and Democrats to the Senate, so that Roosevelt was able to replace eight Justices by the time the Court decided United States v. Darby and Wickard v. Filburn. If you keep returning the same party to the White House over and over again, eventually you are going to get significant changes in constitutional doctrine. Ackerman agrees, but argues that what was crucial was that the American public in the 1936 election self consciously sought and approved of constitutional transformation.

Which brings us back to Tom Goldstein's post. Goldstein points out that there are three Supreme Court seats in play as a result of the next election: Stevens, who is 87, Souter, who is 67 but is said to want to leave the Court, and Ginsburg, who is 74. All three are liberals. If the Democrats win in 2008, they will preserve the current ideological balance for the foreseeable future. But if the Republicans win the next Presidential election, and appoint new conservative Justices, they will have produced a six or seven person conservative majority. At that point, we might witness wholesale constitutional transformations in a number of areas of law, including affirmative action, abortion and gay rights, criminal procedure, and religion. It would be in some respects the vindication of the constitutional agenda of the New Right.

What is interesting about this scenario is that it would not happen because of a widespread and mobilized public support for major constitutional transformation. There has been no triggering or ratifying election in Ackerman's terms. The major Republican victories occurred back in 1980 and 1984 and in the Congressional elections of 1994, and, in Ackerman's view, no major constitutional transformation emerged from them. There have been no recent electoral landslides for the Republicans as in 1932 and 1936. Indeed, the opposition party won both houses of Congress in 2006, signaling, if anything, disappointment with the Republicans' one-party stewardship of the government.

Rather, the constitutional transformation, if it occurred, would happen because the Republicans won the White House in 1980, 1984, 1988, 2000, 2004 and 2008. Because they kept piling up Republican appointments, they eventually produced a situation where there were simply lots of conservative Justices who were also younger than most of the remaining liberals, setting up the possibility of a tipping point.

This tipping point phenomenon has happened before, in the period between 1962 to 1969. It was called the Warren Court, and it saw a major transformation in American constitutional law.

Now if the Democrats retain the Senate in 2008, they will probably force a Republican President to moderate his choices. Nevertheless, it is likely that replacing Stevens, Souter, and/or Ginsburg with two or three Republican conservatives would be enough to make pretty significant changes in the law. These changes might result in Democratic pushback, and possibly Democratic victories down the road. But it would be very hard to undo the changes quickly, just as it was hard for the Burger Court to undo everything the Warren Court did. That would not make sense under Ackerman's theory of constitutional transformation-- and he would regard the changes as illegitimate because they were not the result of a mobilized electorate demanding constitutional transformation. But it would make sense under our theory of partisan entrenchment, which is agnostic on the question of whether these changes are legitimate. (Of course, if the Democrats win in 2008, they will more or less retain the status quo, which will be consistent with both theories.)

What would it take for Ackerman's theory to recognize these changes as legitimate transformations of the Constitution? Well, it would probably require that the Republicans win the 2008 Presidential election by a decisive margin (as well as one or both Houses of Congress) and that the country demonstrate that it clearly wants to embrace a constitutional transformation along the lines the Bush Administration has sought for the past seven years. This would have to be followed by a confirming election that increased Republican majorities in 2010 and/or 2012. At that point, Democrats would have to agree that something significant happened in the country to which they had to acquiesce.

In Levinson's and my theory, even if the Republicans squeak through in 2008 (as they did in 2000) or win a modest majority (as they did in 2004), while the Democrats retain the Senate, that would give the Republicans the opportunity to transform the Constitution. What kind of transformation we would get, of course, would depend on the politics of the incoming President (Giuliani, McCain or Romney) and on the particular type of Justices he appoints.

So who has a better theory of constitutional transformations, Bruce Ackerman or Sandy and myself? Only time-- and possibly the 2008 elections-- will tell.

UPDATE: Mark Field points out in the comments that there is a third possibility: 2008 might be a transformative election creating a new Democratic majority that pushes for a progressive transformation of the Constitution. Far be it from me to downplay this possibility. If it does happen, however, it would create an interesting configuration among the three branches not seen since the New Deal-- a liberal Democratic President and Congress facing a conservative majority on the Supreme Court. Even with liberal replacements for Stevens, Souter, and Ginsburg, there is no way the Democrats can gain a working majority on the Court until Kennedy or Scalia retire. This raises the possibility that an energetic Democrat would receive little help from the Supreme Court, and might even be opposed by the Court on some issues, leading to a constitutional showdown of the type we saw during the 1930s.

All this, of course, is mere speculation. We do not know what sort of Administration the next Democratic President might create. Sandy Levinson and I have suggested that the next President, whether Democrat or Republican, will probably continue elements of what we call the National Surveillance State, which will continues to shift increasing amounts of power to the Executive in order to gather and analyze information believed necessary to promote National Security.
Posted 9:17 AM by JB [link]