Wednesday, July 29, 2020

Courts, The Academy, and Politics

Guest Blogger

For the Symposium on Mark Tushnet, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).

Leah Litman

Mark Tushnet’s Taking Back the Constitution is a tour de force. The book weaves together several of the common threads in discussions about the Supreme Court that have been happening in left-leaning academic circles for the last several decades. And it gives the ideas underlying the threads the depth and rigor they deserve.

One of the book’s threads is backwards-looking and assembles critiques of the Court’s failure to bring about progressive visions of racial and economic justice. The second thread is forward-looking about what this Court or a more conservative Court might do to effectuate some of the Republican party’s goals, including protecting wealthy corporate interests at the expense of workers and labor, such as through deregulation. The third thread is also forward-looking, but it looks beyond existing allocations of political power and asks what Democrats might do in the near and far-term given that the Supreme Court may invalidate any major Democratic legislation and regulation while further entrenching economic and racial inequality.

In this post, I will highlight some tensions between these stories, or at least some of the tensions in how academics have, to date, explained the three different threads. Many smart, sophisticated academics wrote about how the Supreme Court’s failure to meaningfully advance racial and economic justice beyond a handful of 1960s Warren Court decisions was due to limitations that are inherent in the nature of courts, and in the nature of law and legal rights. But if courts and legal reasoning are not able to accomplish all that much, then fears about what the conservative courts would do would seem overblown. That is, if courts failed to realize racial and economic justice because courts are not particularly powerful and they are not as capable of effecting change as legislatures, then why should we be concerned about a conservative Court at all?

The second tension relates to the complicated relationship between law and politics. Progressives attributed some of the failures to bring about racial and economic justice to law’s inability to achieve determinate outcomes or generate right answers. In doing so, they collapsed the space between law and politics, sometimes suggesting that law was nothing but politics all the way down. Other times, their claims were more about the contingency of law-- historical pieces about the development of particular areas of law, or the social movements that influenced the development of particular areas of law.  While law and politics are inextricably linked, fusing the two entirely would be a mistake; so too would be neglecting the more formal sides of law.  With some notable recent exceptions, courts do not write opinions in the language of politics. Writing off law as nothing more than politics fails to use the language of the law and the law itself to give voice to the left-leaning social and political movements that have yet to see their visions and goals embraced by courts.  

 **Courts Matter Or They Don’t**

The first third of Mark’s book synthesizes and expands on some rueful academic analyses of the Supreme Court, including how the Court failed to dismantle racial subordination in the aftermath of Brown v. Board of Education. Most of this story is now familiar: After declaring formal and explicit state-imposed segregation unconstitutional, the Court largely insulated from legal challenges a variety of laws and policies that reinforced or perpetuated racial inequality and racial hierarchies—redlining, white flight, prosecutorial discretion, and the list goes on.

Attempting to explain how and why courts failed to bring about the racial justice and equity some had hoped for, some academics pointed to the nature of courts as institutions, as well as the nature of rights. Courts, academics reasoned, had less power to effect change than legislatures or the Presidency. That’s why voting rights needed the Voting Rights Act of 1965, and that’s why desegregation required Presidents who were willing to send in the federal troops. There’s only so much courts can do in a democratic society, after all—would we really want relatively undemocratic courts to invalidate a bunch of widely shared practices?

But if courts really can’t do that much—or perhaps anything of broad significance—then why would people be concerned about a conservative takeover of the courts?  If courts are not that powerful, especially compared to Congress and the Presidency, then what would be the big deal if Republicans controlled the Supreme Court while Democrats occupied the House, the Senate, and/or the Presidency for the next several decades?

One problem with the first thread (about courts’ failure to realize progressive goals of racial and economic justice) is the academic explanation for that failure, which emphasizes an interesting nuance at the expense of a more banal truth. Sure, courts may not be sufficient to achieve everything. But they can do an awful lot, and at this point, they are necessary to realizing any broad agenda for how American politics and society should work.

Take some recent examples. NIFLA v. Becerra invalidated a California law requiring unlicensed crisis pregnancy centers to disclose that they are unlicensed; the law also required both unlicensed and licensed crisis pregnancy centers to offer resources about where to find information about abortion access and funding. That decision will affect many women during critical, time-sensitive, and life-altering periods in their lives.  Little Sisters of the Poor v. Pennsylvania upheld a regulation allowing employers to opt out of providing employees insurance coverage for contraception—and allowing them to opt out of having the federal government or the insurer carriers, at no expenses to the employers, provide health insurance for contraception.  That decision may affect more than 120,000 women. Or take Raysor v. DeSantis, which allowed Florida to enforce its “pay to vote” scheme that could disenfranchise up to 1,000,000 Floridians who have already served out the terms of imprisonment resulting from their felony convictions. It’s hard to say these decisions don’t matter or aren’t significant; indeed, they are likely to have lasting repercussions for years to come. Disenfranchising a million Florida voters could alter the upcoming Presidential election, for example.

It’s tempting to say that left-leaning political movements need legislatures and executives.  But so do conservative movements.  Even if or when this Court overturns Roe v. Wade/Planned Parenthood v. Casey, abortion won’t be prohibited unless and until legislatures pass laws to that effect and prosecutors agree to enforce them.  

Some of the proposed solutions to the conservative takeover of the courts, the third thread in Tushnet’s book, risk replicating the errors in the academic explanations for the first thread about why courts have not yielded the progressive utopia some would like.  Tushnet’s book, for example, invokes ideas about popular constitutionalism, the idea that the people should interpret the Constitution rather than legal elites and the Supreme Court.

But what, exactly, does popular constitutionalism look like and how is it implemented when the Court wields the powers that it currently has? Popular constitutionalism is a theory with frustratingly few specifics; in particular, it does not tell us how to conform the courts and the Constitution to the views of the people. The women’s march can declare as loudly and as often as they would like “my body my choice,” but at the end of the day, when Justice Kavanaugh writes an opinion that allows Louisiana to close two of the three abortion clinics in the state, or allows the federal government to physically imprison young women who are competent to decide whether to have an abortion, what is popular constitutionalism going to do?  Protesters can also march and chant “Black Lives Matter” and “I Can’t Breathe,” but what will popular constitutionalism do when the Supreme Court says that Wisconsin can enforce restrictive absentee voting laws during a pandemic that disproportionately affects black communities, resulting in long lines of voters risking their lives?  What will popular constitutionalism do when the Supreme Court says that a police officer can shoot and kill someone in a car, against the direction of a superior officer, when there are already some spikes on the road to stop the driver? What will do it when the Court says reparations are unconstitutional and the government does not have a compelling interest in remedying past societal discrimination?

Again, it is true that there are important acts of constitutional interpretation and constitutional development that happen outside of the courts.  But to pretend that popular constitutionalism is a solution to the future that Tushnet envisions in the second part of his book about the conservative takeover of the courts is to wish away the very problem.

** Law and/or Politics**

The second tension I wish to highlight is in the relationship between law and politics. Part of the story about why law and courts failed to realize the goals of racial equity and justice is that judges weren’t committed to those goals.  And, the story continues, because law is political and rights are indeterminate, judges could reach the results they wanted—and blunt efforts to achieve racial and economic equality.

Again, there’s some truth to this story.  As we discussed on the Strict Scrutiny episode on the Title VII decision, Bostock v. Clayton County, all of the textual arguments for why Title VII prohibits discrimination on the basis of sexual orientation or gender identity were the same in 1964, when Title VII was passed, as they were today, in 2020, when the Court adopted them.  Yet no court adopted those arguments when Title VII was initially enacted, and few people think that the Supreme Court would have had it decided the question in 1965.

Perhaps we’ve just gotten a lot better at interpreting statutes, though it’s more likely that the legal arguments were not enough on their own.

Legal academics, at least left-leaning ones, often point out how the development of the law is historically contingent and dependent on social movements, or how less formal interpretive tools or sources can shed light on legal texts.

It’s not that those things are false.  Nor is the problem missing a banal truth for an interesting nuance.  Instead, these choices leave some potent tools on the table—in particular, the courts, law, and legal reasoning. If law is nothing more than politics, then what is there to criticize about any Supreme Court opinion besides its outcome?  Writing off and reducing the significance of legal reasoning eliminates an important form of critique. Without it, there would be nothing to say about the dissenting Justices’ votes in June Medical Services v. Russo besides the fact that they would have upheld a law that would have closed 2 of the 3 remaining clinics in the state.  Never mind that the law was the exact same law—requiring abortion providers to obtain admitting privileges at hospitals within 30 miles of where they perform abortions—that the Supreme Court invalidated four years ago in Whole Woman’s Health v. Hellerstedt.  And nevermind that no serious person could come up with any remotely serious distinctions between the two cases.

That form of critique, about an interpretation of the law or legal text on its own terms, can be important.  It can be how Senators and Presidents support their judicial nominees.  It can be how judicial nominees insulate themselves from accusations of partisanship.  And if what left-leaning academics do is tear down the wall between law and politics, they are eliminating part of what Tushnet rightfully identifies as a source of the conservative power over the courts—legal theories and interpretive methods that just so happen to coincide with one party’s political project.

This problem may be related to another phenomenon Tushnet describes in the book, one that David Pozen and Joey Fishkin wrote about before—asymmetric constitutional hardball.  Maybe there isn’t a left-leaning academic who would declare that the Constitution requires massive redistributions of wealth or a public health care option as some right-leaning academics have opined that the Constitution requires freedom of contract and insulation from government interference in private economic ordering.  

In addition to leaving potent forms of critique on the table, collapsing the distinction between law and politics fails to carry through the work of social and popular movements that influence the law.  If there is nothing that advances a social or political movement’s argument in the register of the law and judicial decisionmaking, then what is a court going to do when faced with a case that implicates the movement’s goals?  It’s not clear; there are probably several different options on the table for how a court might channel a movement’s ideas.

But leaving something that important unfinished would be a mistake. Not developing these arguments in the language of judicial decisionmaking leaves the legal purchase of the arguments undeveloped or at least underdeveloped.  As others have written about before, arguments being to sound more reasonable the more people repeat them and echo them and endorse them.

Tushnet’s book is a provocative and enjoyable read on an important topic. It is also a timely reminder that the Democratic party had better have a plan about what to do with the courts.  A recent study by the People’s Policy Project uncovered some of the dysfunction in judicial nominations by the Democratic party—too often, Democrats select as judges political donors or friends of political donors, or people who have put in the work to local parities. Or they have committees of corporate attorneys and prosecutors who happen to select other corporate attorneys and prosecutors.  They are not nominating people who will be thought-leaders for progressive movements in the law and outside of it.  That is part of what has to change.  But Tushnet’s book deftly identifies other contributing factors as well—while implicitly highlighting still more.

Leah Litman is an assistant professor of law at the University of Michigan Law School and co-host of the Strict Scrutiny podcast. You can reach her by e-mail at

Older Posts
Newer Posts