Saturday, October 06, 2018

Constitutional Rot Reaches the Supreme Court

The fight over the Kavanaugh appointment exemplifies our country's advanced case of constitutional rot. The rot has been growing for some time, and has now reached the Supreme Court of the United States. The Supreme Court is unlikely to save us from decay.  We will have to do that ourselves.

As I have argued in this lecture, our country has gone through cycles of constitutional rot and renewal throughout its history.  We are at (what we can only hope is) the most extreme point in a cycle of constitutional rot. Unfortunately, we are also at the high point of a cycle of party polarization. And, to make matters worse, we are also at the end of the debilitated Reagan regime, with a new political regime yet to be born. The endings of political regimes are highly confusing periods regardless; extreme party polarization and advanced constitutional rot make our current period even more difficult.

A few week's back I gave a Constitution Day lecture at Drake Law School. The question I asked was this: How does the cycle of constitutional rot affect the Supreme Court and the federal courts? Can courts help us come out of constitutional rot?  Does judicial review help counteract the slide into political corruption, or the accelerating loss of democracy and republicanism?

The answer, sadly, is no. In times of severe constitutional rot, coupled with high party polarization, courts are not the solution. They are part of the problem. Courts will not drag us out of a period of constitutional rot; they will either do little to help or actively make things worse. Moreover, as we have seen, the courts are a special prize in these periods, and politicians are likely to engage in ever more outrageous hardball tactics to entrench their power in the judiciary.

Consider the last two periods of pronounced constitutional rot in American history: the years just before the Civil War, dominated by the Slave Power, and the Gilded Age, dominated by what Teddy Roosevelt called "the malefactors of great wealth." In neither age was the U.S. Supreme Court the great protector of democracy and republicanism. Quite the contrary, the Supreme Court behaved very badly during both periods, and produced Dred Scott in the first period, and Plessy, Pollock, Lochner and Coppage in the second. The corruption of an age rubs off on the courts of that age. In a period of constitutional rot, the Supreme Court will be sullied as well.

The Court in the Age of Constitutional Rot

Why are courts part of the problem rather than part of the solution in periods of constitutional rot--and especially high party polarization, which often accompanies constitutional rot?

The answer is complicated, and I can't do fully justice to all of the complexities in this post, but here are a few reasons:

First, corrupt federal politicians pick federal judges and they attempt to entrench pliable jurists who are the most likely to serve their interests. Kavanaugh's appointment is an example.

Second, federal judges are usually drawn from well-educated elite classes, who have adapted to and even benefited from the circumstances that generated constitutional rot, and they tend to share many of the corrupt assumptions of their age.

Third, in times of strong party polarization (such as we have now and had before the Civil War) legislative politics is increasingly difficult. It is hard to get things done through the legislative process. As a result, politicians have strong incentives to entrench their allies in the federal judiciary.

Partisan entrenchment in the judiciary serves offensive and defensive goals. Offensively, courts can push the policy goals of politicians in ways that politicians are unable to, and they can enforce those policies and values against state and local governments. Defensively, the federal courts can protect politicians' policy goals and preserve them from future majorities.

Because partisan entrenchment is especially valuable in periods of advanced constitutional rot and high polarization, politicians may be tempted to engage in constitutional hardball to secure control of the courts and lock in their advantages for decades. Many of the most notable examples of constitutional hardball in the past twenty years have involved the courts, either directly or indirectly. I don't think this is accidental.

Fourth, Sandy Levinson and I have spoken of the distinction between the "high politics" of constitutional principle and the "low politics" of partisan advantage. In general, people more or less expect that courts will be motivated by--and fight over--the constitutional principles of high politics. At the same time, they also believe that courts should not be driven by low politics-- that is, the desire to advance the interests of a political party as a party and help it stay in power. But in times of advanced constitutional rot and high party polarization, maintaining the distinction between high and low politics becomes ever more difficult to manage. Bush v. Gore, in this sense, was a harbinger of worse days to come.

Fifth, the power of judicial review has changed over the course of American history. In the antebellum period, the federal courts were relatively weak; they have gotten progressively stronger with the assistance of politicians, who find judicial review useful on a number of different dimensions. (The political science literature on the political construction of judicial review describes this historical process.) Strengthened by Republican politicians immediately after the Civil War, the federal courts became far more assertive during the Gilded Age. Today, after a century and a half of political construction, the federal courts and the Supreme Court are as strong as they have ever been.

The long-term secular trend of federal politicians making the federal courts ever more powerful means that today, in a period of advanced rot and high party polarization, courts have taken on a special role. They become the policy vanguard of the political parties rather than merely supplementary or gap-filling assistants. Courts, in other words, allow politicians to achieve their political wish lists. Of course, courts have always done this to a certain degree. But in periods of constitutional rot and high political polarization, this becomes one of their central political functions.

When courts are relatively powerful and politicians are relatively impotent, it is especially important to control the courts because the courts can do what politicians can't do, and they can do it for a very long time.

Of course, this is precisely what conservatives complained about during the Warren Court and early Burger Court years. But it's important to note that during those years Congress was also very active as well and passed lots of important legislation. This was a period of relatively depolarized politics in which many kinds of deals were possible between the two parties. (The great civil rights acts were bipartisan achievements, for example.) Courts worked alongside of Congress and advanced many liberal policy goals, but they were not the major vehicle of policy development. Today, it is different. The Republicans can do nothing in Congress but pass a tax cut for wealthy donors. Otherwise, their legislative program is moribund. When legislative politics stalls out, the judiciary becomes a center of policy innovation.

If we look back ten years or so, we see a trend gradually emerging. The Republicans could not repeal the McCain-Feingold campaign finance legislation, or get rid of the Voting Rights Act. But the Roberts Court took care of the problem through constitutional interpretation. The Republicans could not knee-cap class actions or assault public sector unions through legislation. But the Roberts Court did it for them.

Conservatives claimed that the Warren and Burger Courts were politicians in robes. But if so, they acted in a relatively depolarized party system in the midst of far larger reforms by the political branches.  Not so today. The courts are increasingly the main event in policy development. The phenomenon of courts as a policy vanguard makes familiar claims about the separation of law and  politics seem ludicrous. The transparent implausibility of these claims increases distrust in government and in the courts, which, in turn, exacerbates constitutional rot.

The Way Forward

What is to be done? If history is any guide, America will come out of constitutional rot, if at all, through political action, and not through judicial decision, because judges are likely to be part of the problem and not the solution, at least for the foreseeable future. Liberals have often looked to courts as engines of political reform. But the New Deal/Civil Rights Era that produced Brown v. Board of Education, the reapportionment cases, and the civil rights revolution occurred during a time of low party polarization. That is not our world, and so we should not expect anything like the Warren Court to help get us out of this mess. The Taney Court or the Gilded Age Court are more likely analogies. Depolarization will eventually occur, but not for some time.

There are two possible models for the path forward: The first is the aftermath of the American Civil War and Reconstruction. The second is the Progressive Era and, eventually, the New Deal. Both emerged from serious constitutional rot and led to periods of profound constitutional and political reform, but, for obvious reasons, we must hope that the second pattern holds and not the first.

I believe that we are in the Second Gilded Age, and on the cusp of a Second Progressive Era. If so, liberals/progressives should push, as they once did, for political and constitutional reforms. Among American legal scholars, Sandy Levinson has seen the future. Liberals and progressives should denounce the corruptions of the age and argue for and mobilize for constitutional reform. Of course, fighting political corruption and reforming politics by themselves will not be enough to win elections. The public wants jobs, peace, prosperity, and security. But political reform remains an important goal, and it may lead to other good things as well.

Should liberals and progressives also argue for judicial restraint? As a predictive (rather than normative) matter, I expect that the tendencies of the last two decades will keep going in the same general direction.  Liberals and progressives will increasingly argue for judicial restraint, and endeavor, in Mark Tushnet's phrase, to take the constitution away from the courts.

Although I predict that this is what will happen, I believe that pushing for constitutional and political reform is more important than banging the drum for judicial restraint. I myself have never been for or against judicial power per se. The courts are a co-ordinate branch of government, like the Presidency and Congress. Am I for a strong executive or a strong Congress? It depends on the issue at hand. Do I think that courts should have a lot of power? Again, it depends on the issue.

There are good reasons to think that pushing for judicial restraint *as a general principle* will prove unrealistic. There is simply too much water under the bridge. Over the course of a hundred and fifty years, American politicians have constructed powerful federal courts, and both parties and both sides of the political spectrum will want to make use of them.  But *reform* of the courts is another matter. Now is precisely the time to push for good government reforms of the judicial system and especially the Supreme Court. Limited terms for Supreme Court Justices and instituting a regular and predictable cycle of appointments will reduce the stakes of judicial confirmations. *Increasing* the Court's workload and reducing the Court's control over its docket will inhibit political gamesmanship in the selection of cases and help the Court seem like less of a ideological and partisan institution.

Right now we are in an especially corrupt moment and the courts are unlikely to help extricate us. They may even make things worse in the short run. And they are likely to be compromised and tainted by the corruption that surrounds them. But that does not make me a Thayerian or a Holmesian. One should be guided by the nature of the times. Rather than oppose judicial review per se, one should simply not expect too much from courts, and endeavor to keep them from doing too much harm. Things will eventually change. In the meantime, it is best not to look to an institution that cannot and will not help the country.

The lesson of history seems clear enough: During a period of advanced constitutional rot and high political polarization the federal courts are unlikely to be an instrument of constitutional renewal. Renewal will have to come from political mobilization instead.