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 leah.litman@gmail.com.