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 Rahmansabeel.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
This post was prepared for a roundtable on Reforming the Supreme Court of the
United States, convened as part of LevinsonFest
2022—a
year-long series gathering scholars from diverse disciplines and viewpoints to
reflect on Sandy Levinson’s influential work in constitutional law.
Lori A. Ringhand
I am delighted to have
this opportunity to honor Sandy and his work. So much of how I think about the
Supreme Court and the Constitution has been influenced by Sandy’s work, as well
as the work of so many of the other people participating in this event.
Today I am going to
focus on a part of Sandy’s work that has been foremost in my mind of late:
partisan entrenchment and constitutional change. In 2001 Sandy and his frequent
co-author Jack Balkin published a piece in the Virginia Law Review titled “Understanding the Constitutional
Revolution.” The
piece laid out a way of thinking about the Supreme Court that has had a
profound influence on my work. Despite our profession’s obsession with finding
the perfect method of constitutional interpretation, the credibility of the
Supreme Court comes not solely from its interpretive acumen but also from the long-term
legitimacy it gains when its members are appointed by democratically
accountable actors through the confirmation process.
Sandy’s theory of
partisan entrenchment captures this essential relationship between constitutional
law and constitutional politics. Political parties that win enough elections
can extend their influence over constitutional law by entrenching like-minded
justices on the Supreme Court. There is nothing inherently wrong with that: it
is exactly what we should expect from a constitutional design that gives the
nomination and appointment of Supreme Court justices to the President and the
Senate, and it is a key method through which constitutional developments stay, over
time, more or less in line with the constitutional commitments of the American
people. This works only “roughly” and “unpredictably,” but it nonetheless provides
a gloss of accountability essential to the Court’s work.
Written in the aftermath
of Bush v. Goreand the 2000
presidential election, the focus of “Understanding the Constitutional
Revolution” was on how Bush v. Gore risked
skewing this indirect accountability by allowing the justices, rather than the
people, to choose who would choose future justices. In Sandy’s words, the
five-justice majority in Bush v. Gore “severed
the connections between their constitutional revolution and popular will. They
insulated themselves from the normal checks and balances between the political
branches and the judiciary.” Reflecting the gravity of that action,
“Understanding the Constitutional Revolution” began with the words “We live in
extraordinary times.”
Our times, however, have
become even more extraordinary, and the link between the high Court and
elections has become further attenuated. Three of the nine justices currently
sitting on the Supreme Court were appointed by a President (Donald J. Trump)
who lost the popular vote, and did so by a historically unprecedented margin. One of those justices occupies a
seat held open for more than a year to prevent a Democratic president (Barack
Obama) from filling it. Two others were appointed by a second term president
(George W. Bush) who lost the popular vote in his initial election and would
not have enjoyed the advantages of incumbency in his second but for the Court’s
decision in Bush v. Gore. These facts
do not make the appointments of these justices illegitimate, but they do strain
the link between constitutional change and democratic legitimacy.
But how extraordinary is
this, really?
It turns out, we have
been here (or at least near here) before, and that past experience may have
offer lessons for our current moment.
Five US presidents have
taken office by winning the Electoral College while losing the popular vote:
Donald J. Trump, George W. Bush (in his first term), Benjamin Harrison (1888),
Rutherford B. Hayes (1976) and John Quincy Adams (1824). Bush did not fill any
Supreme Court vacancies during his first term. Adams filled one (Trimble) and
Hayes filled two (Harlan and Woods). Benjamin Harrison, though, filled four: David
J. Brewer, Henry Billings Brown, George Shiras, and Howell Edmund Jackson. All
of these justices were part of the judicial voting bloc, emergent in the late
nineteenth century, that would play a critical role in cramping federal power
for first decades of the twentieth. Two of them – Brewer and Brown – would join
the majority opinion in Lochner v. New
York. Brown would write the majority opinion in Plessy v. Ferguson, and Shiras may have provided the critical vote
to invalidate the federal income tax in Pollock
v. Farmers’ Loan and Trust Co.
Partisan entrenchment,
Sandy teaches us, must be earned at the ballot box. But the anti-majoritarian
features of our system of government, the same features that Sandy decries in
much of his work, can operate to facilitate entrenchment even in the absences
of sustained electoral support, exactly like it did for Presidents Harrison and
Trump. This is perfectly constitutional – perhaps it is one of our
constitutional tragedies – but when Supreme Court majorities are formed by
electoral minorities, it undermines the Court’s legitimacy as an instrument of
constitutional development. Presidents who, because of the vagrancies of
judicial deaths and retirements, fill a disproportionate number of seats
relative to their years in office likewise enjoy an unearned advantage in
entrenching their views on the high Court.
Fixed judicial terms are
the solution to this problem. There are many advantages to fixed terms, most of
which have been expounded on at length elsewhere. It is Sandy’s work,
though, that most clearly supports fixed terms by connecting the dots between
the constitutional politics of Supreme Court appointments and the
constitutional law handed down by the Supreme Court. As Sandy writes,
“political parties appoint judges or Justices who reflect the vector sum of
political forces at the time. Each judge or justice then simply does his or her
best given his or her beliefs.” The results will be unpredictable – the Court’s
relationship to the constitutional commitments of the people need not be
perfect to be important - but they need not and should not vary because some
presidents enjoy a vacancy feast while others languish in famine.
As illustrated above,
with regular 18-year terms, the composition of the Court would be much more balanced
than it is currently. Rather than a six-justice conservative majority with
Chief Justice Roberts or Justice Kavanaugh sitting as the median justice, we (presumptively) would have a
Court comprised of four strongly liberal justices, three strongly conservative
justices, a moderately conservative justice, and a moderately liberal justice.
A Court so comprised might well find common ground on many issues. More
fundamentally, it almost certainly would better represent the constitutional
preferences of the American people.
We do not know what our
current undemocratic Court will bring. Political coalitions shift, party
priorities change, and not all presidents prioritize ideology equally in all of
their judicial appointments. Shifts in any of these factors could change the trajectory
of the Court over the next decade. But one thing we can be certain of is that
Sandy’s body of work will inform and illuminate our understanding of what the Court
does, whatever that turns out to be.
Lori A. Ringhand is the J. Alton Hosch Professor of Law and Josiah
Meigs Distinguished Teaching Professor at the University of Georgia School of
Law. You can contact her at ringhand@uga.edu.