Talk of constitutional hardball is in the air.
In the wake of Brett Kavanaugh’s confirmation to the Supreme Court, liberal
commentators have been pondering tactics such as impeachment, jurisdiction
stripping, and especially “packing the court” to a degree
that would have been unthinkable a few years ago. Senate Republicans have
played vigorous hardball on Supreme Court appointments in the past two
Congresses, most obviously by refusing to consider Merrick Garland’s
nomination, and there is a strong desire among many Democrats to respond with
equal or greater vigor.
Even before the Kavanaugh conflagration, the
concept of constitutional hardball seemed to be passing into common usage—a
sobering sign of the times. Introducing the idea in 2004, Mark Tushnet defined constitutional
hardball as “political claims and practices ... that are without much question
within the bounds of existing constitutional doctrine and practice but that are
nonetheless in some tension with existing pre-constitutional understandings.”
Building on Tushnet, Joey Fishkin and I have suggested that a
political maneuver can amount to constitutional hardball when it violates or
strains constitutional conventions for partisan ends or when it attempts to shift
settled understandings of the Constitution in an unusually aggressive or
self-entrenching manner.
The concept of anti-hardball is less
familiar. I am just beginning to think it through myself. As a first cut, we
might define anti-hardball measures as those that reduce the likelihood of
constitutional hardball being played by either side. Hardball tactics invite
retaliation and escalation; they raise the stakes of partisan conflict.
Anti-hardball policies, in contrast, forestall or foreclose tit-for-tat cycles
and lower the temperature of political disputes.
Consider partisan gerrymandering. Bold
gerrymandering tactics may qualify as constitutional hardball, as when
Republican representatives in Colorado, Georgia, and Texas passed
redistricting plans in the mid-2000s, notwithstanding a norm that redistricting
is done only at the beginning of a decade. The anti-hardball solution? Take
away the power to draw districts from elected legislators and turn it over to a
politically neutral body. Most of the world follows this approach.
And in Arizona State
Legislature v. Arizona Independent Redistricting Commission, the Supreme
Court clarified that voters may use ballot initiatives to force their states to
rely on independent commissions for federal congressional districts as well as
state legislative districts. (This ruling is most helpful in the 18 states that allow
voters to amend the constitution by popular vote, without any legislative or
gubernatorial involvement.) The anti-hardball alternative to partisan
gerrymandering is sitting in plain sight.
Another way to think about anti-hardball is as
the set of “good-government” rules that both sides would prefer to adopt, if
they had to write the rules under a veil of ignorance. I suspect that most
politically engaged people, asked to create a redistricting regime without
knowing anything about the partisan composition of the legislature in question,
would opt for a commission model. Republican and Democratic officeholders each
sacrifice something when doing anti-hardball—they limit their own ability to
game the system—but they, their successors, and the general public ultimately
stand to benefit from the enhanced stability and legitimacy that mutual
disarmament may afford.
* * *
Now let’s return to the Supreme Court
confirmation wars. Here, too, a simple anti-hardball solution is already out there: regularizing
the selection process by providing for new appointments every two years and transferring
justices, after they have served 18 years, into some sort of senior status. The
details can be debated. But there is little doubt that this approach would
yield less opportunistic behavior, among other benefits. Conceivably, it could
be designed in a manner that is widely seen to comport with Article III’s Good
Behavior Clause and therefore would not require a constitutional amendment.
Were such a scheme to be implemented, the odds seem good that the scheme would
become functionally entrenched in light of the high costs of transitioning away
from it and its likely popularity with political independents. “Court packing”
would lose much of its appeal.
Does this anti-hardball solution have any
chance of being adopted, though? Somewhat paradoxically, the only pathway may
itself involve constitutional hardball, or at least the credible threat
thereof. As long as Republicans enjoy control of the federal government, they
will be disinclined to upset the procedural status quo. Yet if Democrats become
increasingly energized about “taking back” the Supreme Court at a juncture when
they seem poised to retake Congress and the presidency, Republicans may become
increasingly interested in, say, the 18-year plan in order to head off a
partisan power grab. The best argument for initiating a debate about court
packing, then, is not necessarily to lay the groundwork for packing the Supreme
Court—a dangerous move no matter what the justification. The best argument,
from a systemic perspective, is that such a debate might alter the political
bargaining environment and increase the odds of getting to an anti-hardball
solution.
The paradox generalizes to other contexts. Take
national security. President Trump has been playing a lot of hardball with the
intelligence and law enforcement bureaucracies—the “Deep State”—in a manner
intended to destroy their credibility and independence. Anti-hardball, in this
context, plausibly involves maintaining a firm boundary between the basic work
of these agencies and the play of partisan politics. How can that boundary be
shored up against Trump’s assaults? As Jack Goldsmith has chronicled, the
president’s critics in the intelligence community have been breaking various
norms in response, such as by openly criticizing the president and by leaking
foreign intelligence surveillance information in unprecedented ways. Whether or
not these responses have been wise or worthwhile is a difficult question. But
in general terms, it seems to me that this sort of hardball is most defensible
when deployed as a constitutional
countermeasure to achieve a broadly appealing, anti-hardball outcome.
Voting reform raises a similar conundrum. Any
future Congress in which Democrats have the power to pack the Supreme Court is
also a Congress in which they have the power to enact far-reaching—and long
overdue—voting rights
measures, including automatic voter registration, expanded early voting,
and protections against improper purges. (One irony of single-minded calls for court
packing is that in some ways they don’t go far enough, even as they arguably go
too far in other respects: Why fixate on adding a couple of justiceships when
the entire electoral process could be transformed?) Voting rights reforms would
serve an anti-hardball function insofar as they decrease incentives or
opportunities for partisan gamesmanship in areas such as voter identification
and poll closures. The difficulty, of course, is that at this moment in
political time most voter-turnout-enhancing proposals would advance not only “small-d”
democratic values but also “big-D” Democratic interests. And so, congressional
Republicans can be expected to fight them tooth and nail. Democratic majorities
seeking to pass a transformative election law statute may run up against a
welter of blocking ploys, from filibusters to secret holds to denials of
committee quorums, unless and until they themselves resort to constitutional
hardball.
One complication here is the possibility that
hardball tactics, even if used in the service of anti-hardball ends, become
less effective in our constitutional culture precisely to the extent that they
are acknowledged as such (a subject Josh Chafetz and I have explored). Once a group has
admitted that it is pursuing an extreme course of action with an eye toward a more
moderate or inclusive equilibrium, the group may give up some of the leverage that
pursuit of the extreme course would otherwise have offered. As a matter of
political prudence, this possibility might counsel against flaunting one’s instrumental
willingness to violate norms.
Further complicating things, judicial reform
and voting reform cannot be entirely separated, as an “unpacked” Roberts Court
could strike down a new voting rights bill on the basis of any number of
creative constitutional theories. The unanticipated emergence of the
activity/inactivity distinction in NFIB v.
Sebelius and the principle of “equal sovereignty” among states in Shelby County
v. Holder suggests what such creativity might look like. This possibility
counsels in favor of keeping judicial reform on the agenda. Still, given
Congress’s broad authority under the Elections Clause and the awkwardness of
appearing to oppose voting rights, it could prove difficult for any future
Supreme Court, packed or unpacked, to invalidate a comprehensive election law
statute in whole or in large part. Voting-reform hardball may make sense even
in the absence of judicial-reform hardball.
Implicit in this account is a belief that some
amount of constitutional hardball is apt to be tolerable and indeed desirable
at any given time. Norms should not be considered sacrosanct
simply in virtue of being norms. That said, the socially optimal amount of
constitutional hardball will typically be low, and it is reasonable to assume
that the United States today has significantly overshot the mark. While
anti-hardball policies (however brought into existence) can help move the
political system closer toward an optimal overall level of hardball, that level
is unlikely to be zero.
* * *
Anti-hardball is preferable to hardball, all
else equal. As a rule, legal reformers should seek out anti-hardball solutions
that align with their substantive political commitments. Many examples of
constitutional hardball pursue narrow partisan gain and cannot plausibly be
defended on good-government grounds; romanticizing ruthlessness is a big
mistake.
But certain other examples confound this
calculus. In a period of intense polarization and congressional gridlock, some
of the most morally and democratically compelling forms of anti-hardball may be
unattainable without the aid of hardball, whether as a means to bring both
sides to the negotiating table or as a means to push through a depoliticizing
reform. One important task for scholars, activists, and policymakers is to
develop a better understanding of these dynamics—and to tether short-term
hardball tactics, when feasible, to longer-term anti-hardball strategies.
[Cross-posted at Lawfare]