E-mail:
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahman sabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Consistency and Aggressive Liberal Constitutionalism
Mark Tushnet
Eric Segall has an interesting post
arguing, against my “against defensive crouch liberalism” piece, that liberals anticipating
gaining control of the federal courts should (continue to) advocate for a
general stance of judicial deference and restraint, because (a) historically,
on balance the courts have enforced anti-progressive views and (b) the
Constitution’s values are not progressive ones. Apparently referring to or
citing my piece Randy Barnett tweeted, “See how progressive commitment to
judicial restraint lasts only as long as conservatives are in control.”
In response to Eric: I agree with his assessment of history but
disagree with his assessment of the Constitution – the latter because the
Constitution doesn’t “have” values in the sense Eric intends (his verb is “are,”
but the meaning is the same). Rather, the Constitution is infused with the
values we give it, sometimes progressive, sometimes not, depending on where we
are in our history.
The historical point, while valid, really doesn’t counsel
against doing what can be done with the courts when liberals are “in control.”
It would, perhaps, if somehow doing so would mean that when conservatives
retook control, they would be deferential and restrained. But we know from
history that that’s not true. Just as, in Randy’s view, for liberals judicial
restraint is a sometime thing, so too for conservatives.
The point about the fluidity or, in Jack’s terms, the ideological
drift of “judicial restraint” is analytically tricky, though, because it is
true on the level of movements but not necessarily true on the level of
individuals. That is, because movements have a longer life span than the
intellectual life span of individuals, one can find individuals who remain
consistent over time even as the movements with which they are associated with
are ideologically fluid. In particular, younger conservatives might be entirely
consistent throughout their careers in advocating for judicial engagement or “just
enforcing the Constitution” even though their older colleagues in the movement
were (and might still be) advocates for judicial restraint. (In a different
though related doctrinal domain, the struggles John Yoo has had with aggressive
exercises of presidential power after 2009 are exemplary here.)
That’s why my individual case might be of some interest; I’ve
been around long enough to have experienced the waves of movement change on “my”
side of the aisle. But, contra Randy, I don’t think that I’ve changed. In “Taking
the Constitution Away from the Courts,” I wrote, “Unilateral disarmament is
rarely a good idea.” (Apparently I’ve had to confirm that I wrote that sentence
so often that the book naturally falls open to the page on which it appears!)
That is, I am in favor of taking the Constitution away from the courts for
everybody, but that can be done only through some sort of institutionalized
mechanism. In the book I referred to a possible Supreme Court decision
disavowing the power of judicial review; elsewhere I’ve indicated my attraction
to some variant of the Canadian “override” mechanism (as did Judge Bork, by the
way). But, without some sort of institutionalization, a progressive posture of judicial
deference and restraint is unilateral disarmament, and I’m against that.
Finally, I emphasize something that Eric notes in passing.
Overruling decisions such as Citizens United,
Shelby County, and Heller is legislature-empowering – which
makes sense if, by hypothesis, progressives are in charge in the political
branches. If that hypothesis is correct, though, progressives might be a
position to achieve our rights-protective goals through legislation – a national
statute against anti-LGBT discrimination, for example, or a national statute
protecting the right to choose with respect to reproduction. So, here too, a
judicial stance of deference or restraint – with respect to federalism – might well
be desirable. But, it too would require overruling or at least substantially
confining some conservative precedents that were wrong the day they were
decided.