Saturday, May 14, 2016

Consistency and Aggressive Liberal Constitutionalism

Mark Tushnet

Eric Segall has an interesting post arguing, against my “against defensive crouch liberalism” piece, that liberals anticipating gaining control of the federal courts should (continue to) advocate for a general stance of judicial deference and restraint, because (a) historically, on balance the courts have enforced anti-progressive views and (b) the Constitution’s values are not progressive ones. Apparently referring to or citing my piece Randy Barnett tweeted, “See how progressive commitment to judicial restraint lasts only as long as conservatives are in control.”

In response to Eric: I agree with his assessment of history but disagree with his assessment of the Constitution – the latter because the Constitution doesn’t “have” values in the sense Eric intends (his verb is “are,” but the meaning is the same). Rather, the Constitution is infused with the values we give it, sometimes progressive, sometimes not, depending on where we are in our history.

The historical point, while valid, really doesn’t counsel against doing what can be done with the courts when liberals are “in control.” It would, perhaps, if somehow doing so would mean that when conservatives retook control, they would be deferential and restrained. But we know from history that that’s not true. Just as, in Randy’s view, for liberals judicial restraint is a sometime thing, so too for conservatives.

The point about the fluidity or, in Jack’s terms, the ideological drift of “judicial restraint” is analytically tricky, though, because it is true on the level of movements but not necessarily true on the level of individuals. That is, because movements have a longer life span than the intellectual life span of individuals, one can find individuals who remain consistent over time even as the movements with which they are associated with are ideologically fluid. In particular, younger conservatives might be entirely consistent throughout their careers in advocating for judicial engagement or “just enforcing the Constitution” even though their older colleagues in the movement were (and might still be) advocates for judicial restraint. (In a different though related doctrinal domain, the struggles John Yoo has had with aggressive exercises of presidential power after 2009 are exemplary here.)

That’s why my individual case might be of some interest; I’ve been around long enough to have experienced the waves of movement change on “my” side of the aisle. But, contra Randy, I don’t think that I’ve changed. In “Taking the Constitution Away from the Courts,” I wrote, “Unilateral disarmament is rarely a good idea.” (Apparently I’ve had to confirm that I wrote that sentence so often that the book naturally falls open to the page on which it appears!) That is, I am in favor of taking the Constitution away from the courts for everybody, but that can be done only through some sort of institutionalized mechanism. In the book I referred to a possible Supreme Court decision disavowing the power of judicial review; elsewhere I’ve indicated my attraction to some variant of the Canadian “override” mechanism (as did Judge Bork, by the way). But, without some sort of institutionalization, a progressive posture of judicial deference and restraint is unilateral disarmament, and I’m against that.

Finally, I emphasize something that Eric notes in passing. Overruling decisions such as Citizens United, Shelby County, and Heller is legislature-empowering – which makes sense if, by hypothesis, progressives are in charge in the political branches. If that hypothesis is correct, though, progressives might be a position to achieve our rights-protective goals through legislation – a national statute against anti-LGBT discrimination, for example, or a national statute protecting the right to choose with respect to reproduction. So, here too, a judicial stance of deference or restraint – with respect to federalism – might well be desirable. But, it too would require overruling or at least substantially confining some conservative precedents that were wrong the day they were decided.

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