Saturday, June 30, 2018

Abandoning Defensive Crouch Liberalism Redux

Mark Tushnet

OK, so everybody ignores the final lines of the infamous post on defensive crouch liberalism. But I still think that abandoning it is a good idea -- and indeed, maybe a better idea now than then. For one thing, maybe the Court's "liberals" will now feel liberated to make utopian rather than pragmatic can-we-get-a-fifth-vote-for-this-today? arguments. Justice Sotomayor's dissents in Schuette and the travel ban case can be models. Again, people will have their favorites, but here are some candidates (not all of which I agree with): Affirmative action is constitutionally required. The Constitution requires that legislative boundaries be drawn by independent districting bodies. Campaign finance regulation aimed at leveling the playing field is at least constitutionally permissible and maybe constitutionally required. And, of course: Redistributive taxation is constitutionally required. (I personally think that opinions in the first three areas would be more intellectually honest than the ones liberals have been writing.)

And, another point that's obvious enough: Progressives ought to start getting their heads around the idea of doing Court-packing when/if they get the chance. (It's not as if Republicans won't [a] think of the idea themselves if liberals keep their mouths shut, or [b] accuse liberals of planning to pack the Court no matter what.) In some quite informal conversations about this, I've heard liberals/progressives say, "But, after 1937 there's a constitutional norm against Court-packing." To which I have a few responses: (1) "Why should Republicans be the only ones allowed to abandon so-called constitutional norms?" Do the game-theoretic analysis and either Democrats are being played for suckers, or they have to do tit-for-tat when they get a chance (per Axelrod). (2) The failure of Court-packing in 1937 was a much closer thing than people think. Right up until the end (with Senate Majority Leader Robinson's death), newspapers were reporting that the plan had a decent chance of passing. (The reason is that Robinson had been able to call in enough personal chits -- which of course went away when he died.) (3) Sure, it would be a big political fight, with the standard chin-pullers who write for the Washington Post and the New York Times asserting -- without evidence -- that "the people" wouldn't stand for this sort of blatant politicizing the Court. I can't bear to address that latter assertion directly, but the responses to both parts are pretty obvious, I think. I say that if the political conditions are favorable, go for it.

And, remember that there still are state courts, which will have -- for a while -- some room for maneuver. (The qualification is there because I have no doubt that there will be creative statutory and constitutional preemption arguments that will be developed to close off state court progressivism.) So support Sam Bagenstos's candidacy for the Michigan Supreme Court.

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