Balkinization: Ephemeral Legal Scholarship (subspecies Normative Structural) II

Ephemeral Legal Scholarship (subspecies Normative Structural) II

Mark Tushnet

The most recent thing I picked off the shelf was a symposium issue from 2006 on the emergency Constitution. And, as with the book mentioned in the first of these posts, I started reading articles and quickly did no more than leaf through the issue. One reason is that many of the articles were either drawn from the author’s then recently published work or became part of later larger works that I’d already read (a phenomenon I mentioned in the prior post as well).

Another reason, though, is that the articles were substantially less illuminating now than they might have been when initially published—that is, they were ephemeral. They were about how our constitutional structure could adapt to emergencies, and they were dominated by the availability heuristic—that is, the emergencies they envisioned were terrorist acts originating outside the nation’s borders, with some attention to the possibility of domestic terrorism like Timothy McVeigh’s.

It turned out, though, that the emergencies we actually faced were quite different: a pandemic and a domestic insurrection. (I’m proud to say that in our Comparative Constitutional coursebook, though the largest case study dealt with foreign terrorism, the introductory material emphasized the multiple ways in which national constitutions defined emergencies triggered special constitutional treatment. The forthcoming fourth edition of that coursebook has a substantial case study of constitutional responses to actions taken in connection with the Covid pandemic.)

My guess is that this problem arises in connection with just about every normative discussion of the structural Constitution. Authors identify a current problem arising from settled understandings about that Constitution and propose structural reforms that would alleviate that problem.

The difficulty here is worse than that with ephemeral doctrinal scholarship, though. There the author need “only” persuade the Supreme Court to adopt the proferred doctrine. That might of course be quite unrealistic in practice but in principle you just have to change one or two minds. Structural revisions, though, almost always require changes within the administrative state or statutory changes, which take quite a bit of time to accomplish.

And—and here’s the kicker—by the time you might be able to get those changes made, things have changed so much that you’re basically using bailing pails after the Titanic hit the iceberg. The emergency Constitution discussion provides one example. But, even within that discussion no one had any idea about the role that new social media would play in subsequent emergencies even of the “foreign terrorist” type, much less in other emergency situations.

Other examples come from recent discussions of Supreme Court reform. Today the distracting shiny object—the availability heuristic again—is ethics reform. I suspect that any serious consideration of that topic would conclude that you could impose on the Court a strong enforceable ethics code with all sorts of bells and whistles and (if it survived constitutional review by the Supreme Court, which it probably wouldn’t), nothing whatever would change in terms of results or public satisfaction with the Court’s performance.

The idea of Court-packing was never realistic, of course, but the specter of Court-packing did, I think provoke politicians and editorialists to revie ideas about imposing term limits on the Court. That too has been pushed way down on the agenda because it’s not flashy enough—and imposing statutory term limits, even if constitutional (I think some versions would clearly be constitutionally permissible, though again the Supreme Court justices would probably disagree), can’t be done in the short term, which means that politicians with their typically short time-horizons aren’t likely to make it a priority.

I’ve sometimes toyed with the idea that discussion of structural revisions should draw not upon conventional legal sources but upon science fiction and other forms of speculative fiction (and maybe there are works out there that I’ve missed that actually do so in a serious rather than merely decorative way), precisely because doing so would remove the false image that structural reforms are both desirable (which might be true) and realizable in the short run (which almost certainly isn’t).

The final post in this series will be about enduring legal scholarship.

Posted 10:55 AM by Mark Tushnet [link]