For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).
It is, of course, no secret that Mark Tushnet has been for many years one of the most prolific—and consistently interesting—members of the American legal academy. (Indeed, the adjective “American” is misleading inasmuch as he is surely one of the leading students of comparative constitutional law in the world.)  Therefore it is no surprise that TAKING BACK THE CONSTITUTION:  ACTIVIST JUDGES AND THE NEXT AGE OF AMERICAN LAW offers a truly illuminating take on our contemporary constitutional situation in the United States.  It is  organized around the reality that our society is sharply divided among various constitutional visions and that one must therefore pay attention, among other things, to the question of which proponents of which visions will in fact control the federal judiciary in the coming years.   We are at the conclusion of one age and must pay attention to the potential “next age” that will surely confront us, quite literally for better or worse.  The connection with the 2020 election is obvious.

What may be mildly surprising is how completely accessible the book is to all of its potential readers.  Although it certainly contains appropriate footnotes, all at the end of the book, it is in fact written in a conversational style.  One doesn’t have to any formal legal training in order to profit immensely from reading the book. 

Indicative of his approach is his treatment of those with whom he disagrees, such as (most of the time), the present majority of the Supreme Court.  Much contemporary discourse, whether in the academy, cable television, or judicial opinions themselves, adopts an almost parodic form of “Dworkinianism” in suggesting that deep reflection will produce “right answers” to the perplexing constitutional questions presented by modern life.  This means, by definition, that those one disagrees with are producing “wrong answers,” and the temptation is to define them as either fools or scoundrels.  They are either inept in performing suitably skilled legal analysis or, what may be even worse, they consciously place their fidelity to law to one side in order to achieve their ideological goals.  Exemplary of this unfortunate rhetorical trope is what I have labeled Antonin Scalia’s “trash talk,” directed at his colleagues with whom he disagreed.  It was not enough to say in Obergefell that he thought their analysis of the Constitution with regard to its requiring same-sex marriage was simply mistaken.  Instead, he accused them of not “acting like judges” or, as in Lawrence, another gay-rights case, self-consciously placing their duties to the Constitution behind their commitment to an elite interest group promoting gay rights.  More than any other single member of the Court, he coarsened its internal rhetoric and thus encouraged everyone else to engage in trash-talking themselves when confronting those they disagreed with about constitutional matters.

But Tushnet, throughout his entire half-century career has never been a partisan of “right answers.”  In his younger days as one of the central figures in Critical Legal Studies, he famously pronounced that “critique” (of ostensible legal certainties) was “all there is,” that it was not his job to pronounce a given vision of the Constitution as “correct” or “incorrect” save insofar as he agreed or disagreed with its political implications.  The best manifestation of what might be termed his constitutional agnosticism is his classic Red, White, and Blue, republished by the University Press of Kansas in 2015 with a new foreword by Tushnet (and an afterward by myself), where he offered a meticulous overview of various approaches to constitutional interpretation without enlisting behind any of them as the one true path. 

Tushnet happily presents himself as a person of the left, properly dismayed by some of the implications of the current constitutional vision identified with the conservative Republicans who currently comprise a majority of the Court.  And, of course, if Donald Trump (God forbid) should win re-election, then we could easily anticipate that the current majority, which on occasion features “defections” by Chief Justice Roberts, as in the Obamacare case, or Neil Gorsuch, as in the Bostock case establishing GLBQT rights as covered by the Civil Rights Act of 1964, will become fully solidified and confidently hegemonic.  One could easily anticipate the appointment of justice-in-waiting  Amy Comey Barrett, now on the 7th Circuit and an almost certain vote to overturn Roe v. Wade (and, who knows, to view fetuses as full-scale “persons” sufficiently entitled to “equal protection of the laws” as to invalidate any state laws that do license what she undoubtedly views as “feticide”).  There’s also  Neomi Rao, now on the District of Columbia Court of Appeals, who would seemingly validate almost any and all exercises of presidential power and further legitimize the identity of the United States constitutional order as in fact a “constitutional dictatorship.”

Before turning to the specifics of the 2020 election and potential responses to various outcomes, including, of course, a Biden victory plus a Democratic Senate, Tushnet presents, as already suggested, a marvelously readable overview of what might be termed the current “Republican Constitution” (to adopt the title of Georgetown Law Professor Randy Barnett’s book of several years ago) along a number of different dimensions.  What is most interesting, as also already noted, is Tushnet’s non-denunciatory tone.  That he disagrees with their decisions (usually) does not lead him to assert, as I have on occasion, that the current majority is simply the mouthpiece (or "running dogs") for the capitalist empire.  To the extent that might be true, he would correctly point out that there are many legitimate arguments within the operative legal materials that do indeed protect the capitalist empire against those who would attack it.  It is also true, equally obviously, that there are many legitimate arguments that could serve to challenge, even if not entirely bring down, that empire.  Moreover, it is often the case that one can’t really discern, as in suits between two corporations that come from different sectors of the empire—think of patent or copyright infringement suits, for starters—what its “true interest” might be.  As we so often need to be reminded, the empire, like other collectives, is not an “it,” but a “they,” and interests of the various components might relatively often collide.  That may not be true, however, with regard to the general issue of trade unions, or access to the courts by ordinary folk who (justifiably) feel victimized by corporate misconduct.  Here it is relatively easy to line up the sides; and, lo and behold, the current majority has never met a labor claimant it agrees with, and it is uniformly hostile to such devices as class actions, not to mention its reading the Arbitration Act of 1925, written in a different era for different litigants, to deprive millions of people of effective access to the courts.  But the central point is that a plethora of arguments are all available, and a “sincere” judge, committed to what Chief Justice Roberts (in)famously described as the duty merely to call balls and strikes, could believe, given certain priors about what is in fact best for American society (such as agreeing with Lewis Powell that unions need to be crippled), that the law provides a “happy ending” of conjoining what is best--i.e., aiding the capitalist empire--and what is legally available.

So one of the consequences of adopting this overall point of view is not that Joe Biden or any other Democratic president needs to find “better lawyers” than the ones currently on the Supreme Court, as if getting on the Supreme Court is just one more meritocratic test where victory should go to the “best and brightest.”  No.  It is a question of finding lawyers whose priors as to what is best for America overlap, broadly, with what might be termed the “Democratic Constitution ” and who have sufficient legal skills to mesh those priors with the available legal materials in order to make us (i.e., people on the left) happier than we’ve been in a while with the work-product of the Supreme Court.  It will not in fact be difficult to find sufficiently skilled lawyers.  It really isn’t rocket science.  If this be a litmus test, so be it.

It is naïve to think that appointments to the federal judiciary have ever been apolitically meritorcratic, beginning certainly no later than the recently defeated John Adams’s “midnight judges” and his successful placement of John Marshall on the Supreme Court in order to stymie the programs of the hated Thomas Jefferson to whatever degree possible.  The task, obviously, is to find a president to nominate judges with the right set of priors (and suitable legal skills) and then a Senate to confirm them.  If the historical template was provided by John Adams, the most recent manifestation is evident in the collaboration between Donald J. Trump and Mitch McConnell.  Whatever else one might say about Trump, he was scrupulous in keeping his promise to Christian Evangelicals who sold their souls in order to get conservative judges.  And McConnell has basically made it his mission—and legacy—to confirm as many of them as possible, including, of course, Judges Barrett and Rao, almost literally the tip of the Federalist Society and Heritage Foundation iceberg of appointees who are ready, willing, and able to be faithful servants of the Republican constitutional vision.

But let’s assume a Biden presidency, along with the Democratic capture of the Senate.  In the last part of his book, in some ways the most interesting, Tushnet considers a variety of possibilities.  Begin with the (perfectly constitutional) “theft” of Merrick Garland’s seat by Mitch McConnell and its occupation by Neil Gorsuch, not to mention Brett Kavanaugh’s contentious accession to replace Anthony Kennedy.  That gives the Republicans a controlling majority, even if there is a bit of straying from the reservation.  Should Democrats be “good sports” and wait around for the older Republican justices to retire (or, more likely, die in office should there not be a Republican president who could replace them if they retired)?  Why not instead expand (pack) the Court by two to provide the Democrats with the majority they “should” have attained in 2016 when Justice Scalia suddenly died and presented President Obama the opportunity to name a third Justice (and, of course, Democrat)?  If one is opposed to this, is it because of high principle—court packing is just bad, so don’t even think about it—or pragmatic calculation? The older Republicans can’t live forever, and it’s worth waiting until they can be replaced “normally” without breaching the “norm of nine” (and only nine) justices that in fact did not come close to describing our practices until 1871, and really didn't become a "norm" until FDR's maladroit attempt to expand the Court in 1937.

But what if the reckless Ruth Bader Ginsburg, who I believe should have retired in 2013 in order to make sure of an Obama appointee (joined quickly in retirement, I would have hoped, by Stephen Breyer, appointed only one year later than Ginsburg in 1994), can’t make it until January, when, one assumes, Joe Biden will take over with a Democratic Senate?  Does anyone seriously believe that Donald J. Trump and his minion McConnell would not replace Ginsburg, if they have the opportunity, up until the moment the new Senate takes over on January 3?  That would make six Republicans, so adding two new seats would be inefficacious if one fears that a Republican majority might well strike down as unconstitutional a number of programs that an invigorated Biden Administration and Democratic Congress might wish to pass.  One would have to dd at least four, perhaps six to be safe, new justices.  Why not?

No serious person could argue that it would be “unconstitutional” to add new members to the Supreme Court or, just as importantly, to authorize new seats for various circuit or district courts.  For the latter, one might even make classic “good government” arguments pointing to the almost literally incredible workload that they suffer under.  That is much harder to do with the Supreme Court, where the justices take fewer and fewer cases.  Whatever else explains that, it is certainly not that fewer important legal issues arise now than, say, fifty years ago, when the Court decided literally double the number of cases (with, incidentally, fewer law clerks).  A proponent of economic analysis might simply suggest that the Supreme Court prefers to "shirk" rather than to do its job, unlike, say, the remarkably hard-pressed federal judges on what the Constitution labels "inferior" courts who have basically no control over their docket (and fewer law clerks to boot).  Perhaps Congress should simply stipulate that each justice will get only one clerk per 35 cases decided the previous term.  That would, one presumes, get their attention (and raise no constitutional problems at all.  Nor, one must assume, would the public be aroused, one way or the other by "clerk trimming," an issue likely to be salient only to the justices themselves and to ambitious students (and some of the "feeder faculty" at a relatively few elite law schools.)

This brings up the general topic of “constitutional hardball,” a term basically invented by Tushnet to refer to the ruthless use of what might be termed “constitutional possibilities” in order to attain one’s political objectives.  One response to “hardball” is to argue that we should maintain unwritten “conventions” that temper such possibilities and instead illustrate the presence of what political scientists like Stephen Levitsky and Daniel Ziblatt call the “forbearance”—the voluntary refusal to “take advantage” of everything the law might allow—necessary to maintain a functioning political order that is, like our own, fragmented and often bitterly divided.  Hardball, they might suggest, presents potentially fatal threats to a working democratic polity.  The practical problem, though, is that we, both as a political order and as Democrats, have been the victims of consistent “hardball” going back to well before the Trump Administration reared its ugly head.

When Mitch McConnell announced that his primary aim was to deprive Barack Obama of a second term, what this meant, practically, is that he would use all of his formidable political talents—and formal legal powers—to deprive Obama of accomplishments that he could run on.  He was, of course, unsuccessful in that Obama was re-elected.  But he certainly did prevent Obama from successfully proposing any significant legislation after the fateful mid-term election of 2010.  Should McConnell continue to be Majority Leader in 2021, then the Biden Administration (and the rest of us) would be effectively doomed, save for a perhaps Trumpian reliance on all of the accrued powers of the presidency coming either from the Constitution directly or the “delegation run riot” especially since World War II that has created the possibility of a “constitutional dictatorship.”  But what if Democrats get the Senate back?  Then the crucial, regime-defining vote will take place very early in January, concerning the complete elimination of the filibuster.  That is the only way that Democrats can truly hope to govern, as President Obama noted in his eulogy for John Lewis.

But eliminating the filibuster, however welcome, would only assure the ability of a President Biden—or an invigorated Democratic majority in the both the House and Senate—to pass much-needed legislation.  There would remain, however, the possibility of judicial veto coming from across the East Capitol Street, i.e., the United States Supreme Court.  After all, a Biden victory would take most certainly "in spite of," rather than "because of," the systematic approval, by the Republican majority of justices, of various means of voter suppression, most importantly the 5-4 gutting, through an opinion by Republican John Roberts, of the Voting Rights Act of 1965.  As easily foreseen, that almost immediately provided Republican legislatures and governors in many states the opportunity, having long had the motive, to pass a variety of state laws clearly designed to suppress the Democratic vote.  (It was the equivalent, for the anti-democratic virus of voter suppression, of GOP governors deciding that it was really "necessary and proper" to open bars during the greatest pandemic in our lifetime.)  Tushnet typically provides some thoughtful comments on whether these legislative measures have been necessarily effective in diminishing the Democratic vote, but he certainly doesn’t doubt that that’s why the GOP passed the legislation in question.

Tushnet’s central insight is that we are in a genuine political struggle as to what constitutional vision will succeed the one that has dominated American constitutional politics (and doctrine) at least since the Nixon Administration, when the Republicans first got control of the Court that Democratic victories in 1976, 1992, and 2008 did nothing to displace.  (The last Democrat to appoint a Chief Justice was Harry Truman, in 1947; the last Court with a Democratic majority disappeared when Abe Fortas left the Court, forced out by a combination of his own reckless behavior and Republican hardball politics.)  Hardball, he notes, “becomes an attractive strategy when a constitutional order begins to decay,” especially “in the interregnum between orders.”  That’s exactly where we are.  Will “hardball” turn into “spit ball” and then “bean ball”?  (Or, perhaps, as in Mark Harris’s classic Bang the Drum Slowly, TEGWAR, “the exciting game without any rules”!)  Who exactly can tell?

A proponent of “popular constitutionalism, which may involve “taking back the Constitution” from a judiciary whose rulings are increasingly untenable in their political logic, Tushnet notes that a few people, like myself, propose a new constitutional convention or even the threat of secession on the part of “Pacifica.”  As he correctly says, though, such proposals, at least so far, have gone “nowhere.”  But, as he also notes, citing Jack Balkin, ideas that begin as “off the wall” can, in certain moments, perhaps like our own, quite suddenly become “on the wall” (in Balkin’s words) or “on the table” (the term Tushnet prefers).

In any event, it seems appropriate to conclude by quoting from W. B. Yeats’s canonical poem The Second Coming:

…  Things fall apart; the centre cannot hold;…,
And what rough beast, its hour come round at last,
Slouches towards Bethlehem to be born?

Or perhaps the more appropriate quotation is from Gransci:  “The old world is dying, and the new world struggles to be born: now is the time of monsters.”

Perhaps the upcoming election will offer the beginning of an answer as to what comes next.