Aaron Belkin
I was honored to be asked to
review Mark Tushnet’s Taking Back the Constitution, a brilliant and
well-written book that I enjoyed reading. His crystal-clear mapping of the
damage that conservative justices have wreaked over the past generation, his
sober and troubling assessment of where a modern, conservative Supreme Court
might take us next, and his devasting critique of originalism—or, as he shows,
originalisms—are quite valuable. At the same time, Tushnet overlooks a critical
distinction between how liberal and conservative judges in the Roberts era
(2005-) make decisions, and the elision calls into question some of the central
tenets of his argument.
My critique of Tushnet’s
book depends on a partisan analysis that I elaborate in a recent Pepperdine
Law Review article. My
argument is that the GOP’s current configuration consists of an alliance
between capital (corporations and elites) and resentment or paranoia (for
example white supremacists, xenophobes, sexists, homophobes, and gun
enthusiasts). Capitalists manufacture paranoia to drive resentment voters to
the polls, where they elect representatives who head to Washington and cut
taxes on the rich while deregulating the economy. It’s a simple strategy that’s
well understood.
Perhaps less well understood, however, is the relationship between the
GOP’s electoral strategy and its commitment to lying. Neither the capital nor
the resentment wing supports policies that the public endorses, so Republicans
must mislead or lie to themselves and to the public whenever they talk about
policy. Economic examples include George W. Bush’s naming of his give-away to
oil, gas and coal companies as the ‘Clear Skies Initiative’; the GOP’s insistence that its 2001, 2003, and 2017
tax cuts were for the middle-class; and the framing of the 2009-2010 health
care debate in terms of death panels, as if private insurance does not ration.
Nor can the resentment wing of the GOP
speak honestly about the paranoid basis of its preferences. Gun enthusiasts
cannot acknowledge that they like firearms, in large part, because they fear black people. Pro-lifers cannot admit that they oppose abortion
because they are afraid of what would happen if women controlled their bodies. (If they truly supported life, they would fight climate
change). Anti-statists of the Ruby Ridge variety cannot admit that they oppose
the public sector because they think government programs are for black
people. Xenophobes cannot admit that
they oppose immigration because they think brown people are dirty. (How often does one hear them oppose illegal
immigration from Canada?) Religious extremists cannot admit that they oppose
feminism and LGBTQ people because they are afraid of out-of-control sex. Interestingly, Donald Trump occasionally does tell what
he believes to be the truth about the paranoid basis of GOP politics, such as
when he says that he thinks Mexicans are rapists.
Neither the capitalist nor the
resentment wing of the GOP can tell the truth, and that’s why the party is
structurally committed to lying (or willful ignorance, if you prefer). This has
been obvious for at least a generation. When Newt Gingrich took over as House
Speaker in 1995, one of his first steps was to dismantle the Office of
Technology Assessment and reduce funding for the Congressional Research
Service, echoing how opposition to evidence-based policy is the flip side of
the coin of a commitment to lying. More broadly, Richard Hofstader noted the very
close
connection between willful ignorance and the politics of paranoia in his
classic study of American politics. He observed that, “What distinguishes the
paranoid style is not, then, the absence of verifiable facts…but rather the
curious leap in imagination that is always made at some critical point in the
recital of events.” That’s the modern GOP, and indeed modern American
conservatism, in a nutshell.
My specification of modern American
conservatism as an instance of the politics of paranoia that’s dependent on willful
ignorance applies to the GOP and Republican politicians, to be sure. But the
relevant players and institutions are much broader than that, and include the Federalist
Society, conservative networks described by Devins
and Baum, the Heritage Foundation, the Koch family, Fox News, and many
other individuals, social networks, and organizations. My argument characterizes
a broad political project that includes the GOP and GOP politicians, but also
donors, journalists, judges, voters, think tanks, NGOs, media outlets, and
more. They’re all part of the same project to advance the interests of capital
via the amplification of paranoia and resentment.
What light might this
partisan analysis shine on Tushnet’s book? Tushnet starts with an informative
analysis of how judges reach decisions, a two-step process he describes (citing
Justice Kagan) as “doing law all the way down” [9]. To begin, according to Tushnet,
judges read briefs, bench memos, and lower court rulings to “form a first
impression of the case,” identifying how they want the case to come out. Tushnet
notes that many factors including policy preferences, constitutional philosophies,
political agendas, personal experiences, and social cues may shape first
impressions [10-11].
Then, assuming they decide
to stick with their first impression, judges figure out how to “work through
the materials to that conclusion” by “deploying a slew of moves.” [12; 13] Tushnet
observes that “judges who are really good at working with the legal materials
can find ways to get where their first impressions pointed…[W]hen a talented
judge cares about the result and is willing to do the work, she or he can get
there.” [14] Tushnet says that doing law all the way down is “the best
description of law,” and is “just a compilation of moves or ‘argument forms’”
that include distinguishing the case at hand from potentially relevant
precedent, and identifying analogies in similar cases, status, or
constitutional provisions. [16] He notes that one jurist counted approximately
60 distinct argument forms.
Conservative and liberal
judges tend to adhere to divergent values, to be sure, but Tushnet doesn’t
appear to believe that systematic differences distinguish how they reach
decisions in difficult, high-stakes cases. While first impressions of liberal
and conservative judges may be informed by politics, he says that “judges are
still doing law, not ‘merely’ enacting their preferences…Getting from an
initial impression to a result is what all judges have to do all the time, and
sometimes the initial impression is related to political beliefs” [14;16] Neither
side, according to Tushnet, just calls balls and strikes. Neither side is “just
making sure that people play by rules whose interpretations is obvious.” [17].
Neither side is guided in any deterministic way by doctrine. Both sides let
political beliefs influence rulings.
As much as I enjoyed reading
and learning from Taking Back the Constitution, Tushnet’s conflation of
how liberal and conservative justices decide close, important cases isn’t
persuasive as a characterization of Roberts-era decision making. I would argue
that when conservative judges do law all the way down in difficult, high-stakes
cases, their moves and argument forms typically depend at some critical stage
on willful ignorance (lies) and/or the concealment of values that are
unacceptable to name. When liberal judges do law all the way down, by contrast,
their moves do not depend on disregarding facts or concealing values that are
unacceptable to name.
Tushnet does acknowledge
that a judge’s slew of moves can include a “silly” point [15], but silliness
doesn’t capture the majority’s reliance on willful ignorance during the Roberts
era. Consider, for example, Masterpiece Cakeshop v. Colorado Civil
Rights Commission, which misconstrued a Colorado
official's isolated statement as widespread anti-religious bias; Trump v. Hawaii,
which overlooked the implications of discriminatory
intent for evaluating facially neutral statutes, and which, as Tushnet argues elsewhere,
is “no less racist than Korematsu.”; Shelby County v. Holder, which
advanced the false assertion that voters of color are no longer subject
to systematic efforts to suppress their votes; Citizens United v. FEC, which was based
on the dubious assertion that the appearance of influence or access would not
cause the electorate to lose faith in our democracy; and RNC
v. DNC, which was premised on the notion that, despite concerns about COVID,
the recent Wisconsin primary was an ordinary election. Or, to take more
patterned examples, consider Justice Roberts’s agreement at his confirmation
hearing that Roe v. Wade is settled
law in light of his subsequent 100 percent anti-choice voting record (until June
Medical Services) in cases involving reproductive freedom, as well
as the conservative majority’s jurisprudence of white racial innocence, which
is blind to racism’s
very existence.
Theory, by definition, entails
simplification, its curse and its value. I’m aware that I’m painting in broad
brush strokes, and that there are exceptions to these patterns. Conservative judges occasionally vote in a liberal
direction in high-stakes cases if they conclude that willful ignorance they
would need to deploy and/or values they would need to conceal to reach
politically preferable outcomes might get exposed and produce unacceptable
blowback. Justice Roberts’s rulings in Sebelius and Department of
Commerce v. New York come to mind as possible candidates. Sometimes, they vote
in a liberal direction because their values evolve. Sometimes, they vote in a
liberal direction if doctrine steers them toward a progressive trajectory.
Perhaps Neil Gorsuch’s commitment to textualism drove his recent decision to
extend employment nondiscrimination protections to transgender Americans, not
just gays and lesbians. Perhaps Gorsuch feels genuine empathy toward
transgender victims of discrimination. Perhaps he was worried about political
blowback. Perhaps he was trying to lower the temperature of the national
judicial reform conversation before the Court resumes its pursuit of
arch-conservative values. We just don’t know.
What we do know is that in 80 split-decision civil
cases between 2005 and 2020 in which GOP donor interests were clear, the
Supreme Court voted in the
direction favored by GOP donors 100 percent of the time (80-0). Senator Sheldon
Whitehouse observes that in about half of these
cases, the conservative majority disregarded conservative judicial doctrine to
reach a decision favored by GOP donors.
Or, consider the question of
precedent. During his 2005 confirmation hearings, Roberts emphasized his
respect for precedent, affirmed that flaws in precedent are “not enough…to
justify revisiting it,” and underscored “the values of respect for precedent,
evenhandedness, predictability, stability.” But during his first 14 years as
Chief Justice, Roberts presided over 21 precedent-overturning cases and voted
to overturn precedent in 17 of them (81%), making him the second most
frequent member of the majority in precedent-overturning cases. Perhaps even
more telling, Roberts’s voting
record in precedent-overturning cases is among the most partisan of any justice
in the modern era. In 15 precedent-overturning cases with partisan
implications before the recent term, Roberts voted for conservative outcomes 14
times (93%). Then, all of a sudden in June Medical Services, Roberts invoked
precedent to reach a liberal conclusion. Was the case distinguishable because
its relevant precedent was only a few years old? Maybe. But doesn’t it seem
more plausible that Roberts’s vote was a cynical reflection of concerns about
the 2020 election and the possibility
that Democrats might reform or expand the Court?
The relationship between the
GOP’s commitment to willful ignorance and the distinction between how liberal
and conservative judges do law all the way down has important implications for one
of Tushnet’s central arguments. Tushnet makes the case for progressives to
embrace popular constitutionalism as a long-term response to the current
interregnum between constitutional orders. He notes that there have been two
constitutional orders since the 1930s, the New Deal/Great Society order and the
Reagan order, and that we may be on the precipice of a new order today. But
understanding this moment through the lens of constitutional orders conceals the
urgency of what’s at stake. The critical battle is not between prevailing legal
or doctrinal approaches and it won’t take place in court. The GOP has not
engaged in asymmetric hardball because the Reagan constitutional order is dying
[237]. The central question of this moment is not whether a new constitutional
order will emerge, and if so, what it will entail.
This moment, rather, is
about whether the GOP that has radicalized over the past 50 years will kill
democracy before Democrats save it. The urgent question is whether Democrats will
return to power in 2020 and play hardball by modifying Senate rules including
the filibuster, blue slips, unanimous consent, and holds; expanding federal
courts including the Supreme Court; and enacting an aggressive version of HR 1
that adds 40 million voters to the rolls and grants statehood to Washington DC
and Puerto Rico, among other pressing reforms. Democrats probably have one
chance to pull off this trifecta, in that demographic shifts may preclude them
from achieving a Senate majority in 2022 and beyond. If Democrats fail to
return to power in 2020 and achieve this trifecta quickly, they may still win
elections from time to time, but the GOP will continue to sabotage democracy,
slowly over time, until the US arrives at a tyrannical outcome. (I develop
these arguments in the Pepperdine Law Review article mentioned above, and I encourage those
who doubt it to watch the House Oversight Committee’s July 2018 hearings with
Peter Strzok).
Tushnet does acknowledge the
distinction between democratic decay and transitions to new constitutional
orders [233]. But he overlooks that modern conservatism’s commitment to willful
ignorance, including the way in which conservative judges do law all the way
down, is a 5-alarm fire and a clear indicator that democracy is hanging by a
thread. This moment is best characterized in terms of deep and dangerous
democratic decay, not as an interregnum between constitutional orders. As historian Timothy Snyder argues, once a
political movement is committed to lying, tyranny can ensue. There’s a
good chance that the constitution won’t mean much pretty soon, and if democracy
dies, we won’t look back on this era as an interregnum between constitutional
orders.
Tushnet advocates for a
long-term strategy, popular constitutionalism, and discounts short-term hardball
because winning at hardball would require “that a dynamic new political order
gain control of both houses of Congress and the presidency for an extended
period” [239]. But if Democrats win in 2020 and pull off the trifecta described
above, the GOP may have to de-radicalize at least somewhat to return to power.
If Democrats fail to return to power, or if they do return to power but wait to
play hardball, they might not have another chance.
Aaron Belkin is director of Take Back the Court and Professor, Department of Political Science, San Francisco State University. You can reach him by e-mail at belkin at takebackthecourt.today.