Balkinization: Realistic Utopianism

Realistic Utopianism

Guest Blogger

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Mark Tushnet

Conventions often reflect enduring values, and so I begin with the conventional statement of appreciation for the seriousness with which the contributors to this Symposium have taken my arguments. As several contributors suggest, I wrote the book in a style intended to make its arguments accessible to interested nonspecialist readers. One consequence was that the political/legal theory underpinnings of the arguments weren’t fully exposed. So, for example, I refer to Stephen Skowronek and to legal realism, but don’t explain what revisions I’ve made when I “use” Skowronek, nor do I defend my particularly strong version of legal realism.

In this response to the Symposium I’ll try to describe in a bit more detail some of those underpinnings as a way of engaging with the contributors. Somewhat arbitrarily, I’ve organized my comments under the headings Past, Present, and Future.

The Past. Several contributions raise questions about the guiding argument that we are approaching an inflection point in the constitutional order, with the demise of the Reagan constitutional regime either at hand or already in the past. (My version, that we’re in an interregnum, takes the latter position, but nothing much turns on whether the Reagan regime is dead or staggering on its last legs.) Jack Balkin agrees with me on this point, Amanda Hollis-Brusky disagrees with both of us. I’m tempted to leave it at that, but I think there’s a theoretical/methodological difference between me and Professor Balkin that’s worth bringing out. (I’ll say more about Professor Hollis-Brusky’s substantive argument in the final section of this Response.)

I start with the observation that, though I find that Professor Skowronek’s arguments provide a great deal of illumination for understanding modern constitutional development, I occasionally worry about using his framework too mechanically. In part that’s why I supplement his concept of “political time” with my idea of “judicial time” (and, frankly, I think that sort of concern might motivate his own introduction, with Karen Orren, of the theoretical concept “intercurrence,” which in their domains of presidential and congressional studies does something like the same work that “judicial time” does within mine.)

I get even more nervous when Professor Balkin introduces two additional theoretical constructs – polarization and rot – into the analysis. These look like general concepts. So, for example, Professor Balkin says that regime transitions are relatively smooth when polarization is low, more difficult when it is high. We’re already dealing with only a handful of regime transitions. Throw in polarization and we have two cases in one category and one in the other. Adding “rot” to the mix, and things get even worse, because as far as I can tell, constitutional rot isn’t associated with past regime transitions (or anything else systematic); the First Gilded Age is there, but what it has to do with regime transitions is obscure. What we have, then, is a narrative description of the current situation using metaphorical generalizations that support Professor Balkin’s more pessimistic assessment of that situation. Here D.A. Jeremy Telman’s characterization of my book as “providing a master narrative” through the use of “literary tropes” seems to me exactly right. Pessimism might be warranted, but not, I think, because we have anything approaching a well-founded set of theoretical propositions predicting (even weakly) that hard times are ahead.

And, not entirely incidentally, my theoretical “modesty” (in my self-understanding) explains why I don’t offer the kind of external explanation for the shape of the current constitutional order that Aaron Belkin offers. I’m pretty sympathetic to something along the lines of the account he provides, but I’m a constitutional lawyer. Though in the past I have gestured in the direction of connecting constitutional orders to the economic order, I really have no expertise on such matters. And, at least as I understand my own work, nothing in it turns on whether Professor Belkin’s story, which – again – I intuitively agree with (mostly), is right or wrong.

As to legal realism, I can be brief. Stephen Griffin and Professor Telman both suggest, in slightly different ways, that I underplay the effect the “law” might have on what justices do. Professor Griffin refers to “law-related reasons,” Professor Telman to doctrinal “legacies.” But, on my version of legal realism, law and doctrine is fully accounted for in the “moves” good lawyers make in constructing arguments. To take Professor Telman’s version: Suppose some existing doctrine might seem initially to weigh against the result a judge thinks it would be nice to reach. All that means is that the judge has to do more analytic work than she would have to do in the absence of the doctrine – come up with some moves that she wouldn’t have to make otherwise.

I acknowledge that sometimes judges don’t come up with moves that are fully satisfying. My favorite examples come from Chief Justice Charles Evans Hughes and Justice Samuel Alito, neither of whom is a slouch at legal analysis. At a crucial point in Jones & Laughlin, Hughes throws up his hands and says that a prior decision “is not controlling here.” And, at a similarly crucial point in Matal v. Tam, Justice Alito does the same thing, saying, almost in terms, that the cases that pose an analytic difficulty are just different from the case at hand.

My version of legal realism has some stories to tell about such examples. Sometimes judges run out of time before they can get all the work done; sometimes neither they nor their law clerks are just not talented enough to figure out how to deal with the difficulty (I have a story to tell on this matter about an opinion I worked on during my term as a law clerk to Justice Marshall); sometimes they decide that their initial inclination “just won’t write” (this is related to the preceding point); and sometimes they just bull their way through to the result, as Hughes and Alito did. My point here is simple: To say that judges have law-related reasons or face (or create) doctrinal legacies is to take a position against my version of legal realism. I might be wrong (though of course I don’t think so), but if I am it’s not because I don’t understand the phenomenon of law-related reasons and doctrinal legacies.

The Present. Writing this kind of book poses a distinctive problem. You’re talking about recent Supreme Court decisions. You have to finalize a manuscript at least a year in advance of publication. The Court doesn’t care. It continues to churn out opinions, and you just can’t take the most recent Term’s decision into account. Put another way, the Court can always “falsify” (unintentionally, of course) any claims you make about its work.

The only way to deal with this problem is to take a wider view than a single Term – come up with a sort of “rolling average” describing the Court’s general tendencies. You have to be able to say, “Well, sure, June Medical fits into my story awkwardly, but if you look at the pattern over any two- or three-Term period my story is better than any alternative.” (I should note, for the record, that Bostock is completely compatible with the story I tell about the end of one front in the culture wars, and that my story about abortion is that Roe is vulnerable, which isn’t disconfirmed by June Medical and might even be supported by Chief Justice Roberts’s separate opinion there.)

The current embodiment of this problem is “John Roberts the institutionalist.” I don’t think I use either of the following snarky comments in the book, but I’ve said them before: (1) John Roberts is liberals’ Obi-Wan Kenobe, their only hope on the Supreme Court. (2) Roberts offers liberals the 80% solution: “I’ll give you my vote 20% of the time so that you can tell the story about my institutionalism, but I’ll go with Republicans 80% of the time, which might not satisfy the most fanatical Trumpists but is pretty darn good.” (Think here of how the votes have gone in voting rights cases, and especially in what Steven Vladeck calls the Court’s shadow docket.) Professor Belkin’s contribution to this Symposium shows what’s wrong with the “Roberts as institutionalist” story when you look, as you should, at more than a selected handful of decisions.

The Future. Several of the contributions focus on the book’s final section, on what constitutional regime might replace the Reagan constitutional order. I describe three possibilities. The first is that the interregnum might continue for a while, with divided government and legislative gridlock, or (more interesting) a unified Democratic government whose majority isn’t willing to play hardball with the Supreme Court even if Democrats modify or get rid of the legislative filibuster. My discussion in the book says that the Court is well-positioned to, and in my view would be likely to, thwart Democratic legislation in ways that will “demonstrate” to enough members of the public that Democrats can’t get anything done (supplemented by journalists’ seemingly genetic predisposition to write “Democrats in disarray” stories). The result? A new Republican constitutional order after the interregnum’s end.

The second possibility is the emergence of a Trumpist constitutional order. Because Trump is, to say the least, not a good articulator of a constitutional vision, at the time I had to finish the manuscript I couldn’t do much to describe what such an order would look like. Now we have more material to work with, and I think some scholar will soon make her or his name by writing a good account of the constitutional visions available in speeches by Senators Hawley and Cotton, Pompeo’s “Rights Commission” report, and Adrian Vermeule’s provocative article.

There will be continuities between the new Trumpist ideology and the old Reagan one, such as a commitment to a strong version of the unitary executive (though I also suspect that a new progressive constitutional order, were it to materialize, would have a similar commitment, though not grounded in a purported originalism). And in the short run, as the Court tries to manage the transition from the interregnum to the new order, we might see older Reaganite themes being sounded. To that extent Professor Hollis-Brusky’s observations about the current Court ring true. But, I think it likely a mistake to believe that the Court’s Republican appointees are going to be Never Trumpers if a Trumpist regime consolidates.

The constitutional ideology of a consolidated Trumpist order would, I argue, be significantly different from that of the Reagan one. In the Reagan constitutional order conservatives criticized substantive judicial review because, they argued, courts should defer to the expressed will of democratic majorities. That was fine when Republicans thought they controlled legislatures but not the courts, but it became unnecessary when they gained control of the courts (and even became problematic when they controlled the courts but not blue state legislatures).

The result is a defense of substantive judicial review (I discuss the idea of “judicial engagement” with economic regulations as an example) beyond what even current versions of originalism contemplate. That defense will, I think, edge gradually in the direction of rulings about the government’s duty to promote substantive values, as the emerging Cotton-Hawley-Pompeo-Vermeule argument has it. We can see glimmerings of that possibility in the Espinoza case, which provides the doctrinal resources for holding that states that operate public schools must provide equivalent financial support to religiously affiliated schools. And there is already circulating in conservative circles the argument that the Constitution’s substantive due process guarantee of life to all persons requires that abortion be prohibited.

Of course we can’t know the precise contours of a Trumpist constitutional ideology of affirmative government duty, which will be worked out gradually by Trumpist courts and its supporters in the legal and political-theory academy (as Julia Azari’s contribution indicates). Yet, even broaching the possibility of such an ideology suggests real differences from the conservative ideology of the Reagan constitutional order.

And, last what of a consolidated progressive constitutional order? My discursive strategy in the book switches when I take up this question. Rather than describing a substantive progressive constitutional vision parallel to the Trumpist vision I sketch, I simply ask that progressives “think big.” That’s the point of realistic utopianism. Of course utopian projects aren’t going to be adopted in the first year of a consolidated progressive constitutional order, so I’m unmoved by the skepticism several contributors offer about whether utopianism is realistic in the short run.

And I’m similarly unmoved by the argument that the progressive response to conservative hardball tactics is to continue to play the patsy because responding in kind threatens a downward spiral into a chaos without conventions to serve as guardrails in a legal realist world where law cannot guide well enough. I discuss the reasons for my lack of concern in the book, and won’t repeat the arguments here, except to make two points. First, arguments about whether some act counts as hardball take the same form that legal arguments do, so if law can’t be provide reliable set of guardrails, neither can norms. And second, although the social science is contested, there’s a good case to be made from empirical studies in game theory that the best response to hardball tactics is a limited strategy of “tit for tat,” that is, playing hardball in return (for a while). But, again, I don’t think there’s any evidence at all that continuing to be steamrollered (to shift the metaphor) serves to rebuild guardrails that have been dismantled.

Realistic utopianism takes its motto from Rousseau: think about people as they are and the laws as they could be. So, it’s not a realistic utopian proposal to solve the climate crisis by colonizing Mars or engaging in terraforming on a grand scale even if either one would indeed solve the crisis. The Green New Deal, though, is another matter: It doesn’t require a “new environmental person” (akin to the “new Soviet man” that drove Soviet utopianism into the ground). It “simply” takes a commitment to actually do it.

But, of course, there’s nothing simple about the process by which achievable but currently utopian proposals become politically feasible (are put “on the table,” in my metaphor). Professor Balkin points this out with his references to the movement-based popular constitutionalism of Professor Post and Siegel (which, I add as a point of personal privilege, is something I’d written about independently of their work), Talking about formally amending the Constitution (Professor Griffin’s advocacy for “amendment politics”), or talking about adopting a new Constitution without going through the Article V process, is a way that people like me can contribute to that process. (Here it’s worth mentioning that, as Professor Belkin and other activists on court reform observe, merely raising the possibility of Court-packing might have tempering effects on how individual justices do their job.) But, as I emphasize in the book, it’s the talking about that matters, not actually implementing any specific constitutional reform.

The thing about realistic utopianism is this: The things that seem impossible are impossible – until they aren’t. The phase-shift can be quite dramatic, as this year’s version of the Black Lives Matter movement indicates: Who would have thought in January 2020 that the Mississippi legislature would vote within the year to eliminate a version of the Confederate battle flag from the state’s official flag? Or, as Nike used to say, “Just do it.”

Finally, a truly minor point – defending my “on the table” metaphor as better than Professor Balkin’s “on the wall” one. I get the idea of throwing lots of ideas out there and seeing which ones actually grab hold; that was FDR’s approach during the New Deal. Note, though, how Professor Balkin describes something that ends up on the wall: “an ugly food stain.” I suppose that’s right, in a couple of senses, about the broccoli argument against Obamacare. But, really, is that how we want to think about the ideas people come up with for legal and political reform – the ones that stick leave ugly stains? (I think here of the ingenious [maybe “off the wall” at the time] preclearance mechanism in the 1965 Voting Rights Act, taken down by another invented argument – the “sovereign equality of the states” – by Chief Justice Roberts.) The “on the table” metaphor, in contrast, leads us to think about discussing new ideas on the merits, as realistic utopianism would want – perhaps a bit too antiseptic an image of a purely deliberative politics, but, for me, more attractive than thinking about how our ideas can leave ugly stains on the wall.

Having begun with a reference to the value of conventions, and having discussed along the way the value of sometimes breaching conventions, I end with a return to the conventional thanks to all the contributors for leading me to think again (and perhaps more deeply) about some of the issues I raise in Taking Back the Constitution.

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