Wednesday, July 29, 2015

My comments at SEALS on the Roberts Court at Ten

Mark Tushnet

This is a short summary of a short, broad-brush account I gave at yesterday's SEALS panel on the Roberts Court at Ten. I argued that the best way to understand the Roberts Court is to see it in the context of the recent transformation of the US party system. For some decades/generations, the major parties were coalitions with some groups in each sharing ideological views with some other groups in the other party (the classic examples are Northeastern moderate Republicans and Southern conservative Democrats, but there are other more complicated ones). Constitutional doctrine and the conventions of politics that generate substantive policy outcomes were predicated on the existence of that party system, particularly but not exclusively in connection with structural constitutional issues.

Over the past decade or so, the party system has changed into one in which the parties are substantially more ideologically coherent within themselves (that's a comparative judgment, not a claim about complete internal coherence), and able to assert discipline over potential "defectors" through various mechanisms of support from national parties and contributors. The result is a system of hyper-partisanship in which (again oversimplifying) the most liberal Republican is more conservative than the most conservative Democrat. That party system generates new constitutional problems, for which doctrine predicated on the understandings developed under the older party system isn't entirely suitable. And the result is a certain amount of thrashing around as the Justices on both sides of the partisan divide try to figure out new doctrine appropriate to the new party system. (The clearest example, I think, is Noel Canning, but again there are others).

Most of what I've just written is about how (distinctive) constitutional conflicts are generated. What of the Roberts's Court's response? Here I reverted to a discussion in my book on the Roberts Court, In the Balance: Law and Politics on the Roberts Court. The Court's conservatives, currently in the majority, have a choice between two strategies, which I called the "long game" and "shoot the moon." The long game is incremental movement in a more conservative direction; shoot the moon involves getting as much as you can as fast as you can. Both strategies have risks ("relevant replacement" Justices after the 2016 elections would prevent the long game from winning; you might not pick up the necessary fifth vote when you shoot the moon). I suggested that on current evidence (which I concede can be read differently), the Roberts Court has chosen to shoot the moon. The best evidence, I think, is the composition of the Court's docket -- precisely because sometimes the outcomes of the shoot-the-moon strategy are "failures" from the conservative point of view.

My presentation was sprinkled with additional qualifications about evidence and confidence in the analysis. One thing I didn't say, but which might be true, is that the relative attractions of the two strategies depend in substantial part on what you think the likely outcome of the 2016 elections will be, with shooting the moon more attractive the more likely you think a Democrat will win the presidential election then.

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