Friday, July 31, 2020

There Are No Balls and Strikes in Constitutional Hardball

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).

D. A. Jeremy Telman

Critical theory encourages skepticism with respect to master narratives.  Mark Tushnet has contributed as much as anybody to the introduction of critical theory into legal scholarship, and yet for the first two-thirds of his new book he provides a master narrative of the jurisprudence of the Roberts Court from the perspective of his critical realism.  Tushnet’s account, like all such accounts, avails itself of literary tropes in order to render disparate developments coherent.  Such techniques yield unique insights made possible through strategic blindness.  Tushnet’s narrative is satisfying, in part because it acknowledges its incompleteness, in part.  His account is brisk and engrossing, economical and inventive.  The problems with Taking Back the Constitution mostly arise when he builds upon his fictive narrative to offer strategies for realizing a new progressive constitutional order.

For the first two-thirds of the book, Tushnet unmasks Chief Justice Roberts’ claim that judges just “call balls and strikes.”  Judges exercise what Chief Justice Marshall called “a legal discretion,” in which they choose among legal doctrines, interpretations and constructions of legal texts, and different ways of identifying and characterizing the relevant facts.  Such legal discretion suffices, in the tools of a skilled practitioner of the judicial trade, to produce numerous outcomes, all well-supported by legal reasoning.  This is so, Tushnet shows in his discussion of Yates v. U.S. (pp. 5-9), even when the commitments that divide the Justices are not political.  But Yates is not different from the most divisive constitutional cases: judges always engage in what Justice Kagan described as doing “law all the way down.”

At a high level of generality, Parts I and II of Taking Back the Constitution make a familiar legal realist argument.  The Court is political: the conservative Justices will issue opinions that promote a conservative agenda, and the progressive Justices will write opinions (or dissents) in which they advocate for legal conclusions that will promote progressive causes.  The detail that Tushnet provides here constitutes the singular contribution in his new book.  In just under 200 pages, Tushnet narrates the Court’s course from the Constitution that animated the New Deal and Great Society to the Roberts Court’s reification of the Reagan revolution in law.
In Parts III and IV, Tushnet offers a number of bold alternatives to conventional politics, ranging from the forms of popular constitutionalism that Larry Kramer proposed as the originalist alternative to judicial review (pp. 246-56), to constitutional amendments (pp. 262-65), or a new constitutional convention (pp. 265-70.  Tushnet regards the demise of the progressive strategy of social change through constitutional adjudication with resignation.  He is willing to enter the norm-free zone of constitutional hardball and entertain “realistic utopian” solutions to our constitutional morass.  The current annus horribilus suggests that we are barreling towards a constitutional crisis far more quickly than Tushnet anticipated.  As the current administration daily challenges settled legal and political norms, progressives have more to fear than to gain from the kind of constitutional hardball in which partisans follow a leader who is willing to send them and the country over a cliff so that he can project toughness.  At the same time, some of the Court’s extraordinary decisions in its most recent term suggest that Tushnet’s resignation regarding the traditional progressive strategy of marching through the legal institutions is premature.
The Conservative Court’s Agenda

According to Tushnet, the Court assumes a unique role in our constitutional development.  The least dangerous branch engages gently in our political wars, adopting language that emboldens the political branches while evading decisions with sweeping consequences.  The Court rarely delivers wholesale victories to its favored side, as the Justices know better than to place hot-button issues beyond controversy.  Half measures, in Tushnet’s rendition of the Court’s strategy, preserve the Court’s legitimacy for progressives while providing fodder for the armies of reaction.

His review of doctrine begins with the Court’s election law jurisprudence.  The conservative majority’s opposition to campaign finance reform, toleration for political gerrymandering, and support for vote-suppression plans that masquerade as responses to the threat of voter fraud, all reinforce the Republican Party’s electoral strategy (pp. 51-55).  The Court’s notorious Shelby County decision facilitated a range of electoral measures designed to make it harder for poor people to vote in areas of the country where those poor people are likely to be people of color (pp. 55-59).  That part of the conservative Court’s agenda went into overdrive this term. In a series of 5-4 or 6-3 decisions reached without argument, the Court made it harder to vote in various ways in Alabama, Wisconsin, and Florida.  In keeping with its faux neutrality and commitment to the rule of law, the Court’s decisions in these cases were all procedural.  The Court will not pronounce on the merits of these cases until after the dust form the November elections has settled.

Tushnet brings together disparate doctrinal threads which he characterizes as part of a campaign to “defund the left” (p. 59-65).  They include: economic substantive due process cases that limit punitive damages awards (pp. 59-61); restrictions on class actions and expansive readings of the Federal Arbitration Act (pp. 61-62); and the Janus decision that weakened public labor unions (pp. 63-65).  Tushnet neatly connects these decisions by noting that all of them take money away from groups (labor unions, plaintiffs’ attorneys) that support and fund Democratic causes.
The culture wars are largely done, Tushnet believes, and what remains are mere skirmishes and mopping-up operations.  The conservative majority prefers symbolic victories.  Gun rights have been recognized, although their contours are maddeningly obscure.  There will be no more talk of a wall of separation.  The government can accommodate and even fund religious practice without sacrificing its neutrality, while it exempts religious organizations from federal employment law.  Tushnet thinks cases like Hobby Lobby and Heller make a point but have little effect on the regulatory environment.  He may want to revisit that position after Little Sisters of the Poor, following which, according to government estimates, as many as 126,400 women will lose access to no-cost contraceptive services.

Tushnet predicts that the next step will be to require legislators and regulators to effect rules and laws that promote the conservative agenda (p. 45). As Tushnet points out, the religious freedom movement has shifted from protecting religious practices to imposing religious principles on other, in particular women and LGBTQ people (p. 88).  What the Court gave in Bostock, it took away in Our Lady of Guadalupe.  The Court’s Establishment Clause jurisprudence has since the 1980s been eroding the wall of separation, and it now allows government to subsidize religious education through voucher programs (pp. 92-94).  As this term’s decision in Espinoza v. Montana Dep’t of Revenue illustrates, laws affecting or protecting religious freedom seem to be the tip of the spear in the push to force states to favor conservative policies.
Still, the trajectory of the Roberts Court resists Tushnet’s narrative in interesting ways.  Tushnet duly concedes that some progressive Justices went along with the economic substantive due process decisions while some conservative Justices opposed them (p. 61).  Justices Breyer and Kagan join with the conservatives on cases interpreting the Free Exercise and Establishment Clauses.  Lengthy dissents and concurrences form Justices Thomas and Alito suggest deep fissures in the conservative camp that render Tushnet’s account of the Roberts Court’s master strategy less persuasive.  Tushnet also acknowledges that the Court’s pro-business agenda lacks coherence, at times because its anti-regulatory and federalist inclinations collide (pp.  137-41), at times because what is good for big business is bad for small businesses (pp. 141-44).  The conservative majority has failed to come up with a coherent strategy for weaponizing the free speech rights (pp. 181-86).  In addition, it is hard to reconcile Justice Kennedy’s legacy with Tushnet’s general narrative.  Nor is it clear, after the setback in Masterpiece Cake Shop and the surprising victory for LGBTQ rights in Bostock, that the major battles in that corner of the culture wars are behind us.

True to his realist methodology, Tushnet wastes no time trying to persuade people that the progressive position is right and the conservative position is wrong.  He does not engage in protracted critiques of individual decisions, only remarking occasionally that the reasoning is not particularly strong or that the decision is not well-grounded in precedent.  If readers want critical takes on particular doctrinal issues, they will have to look elsewhere.  If readers do not share Tushnet’s political sympathies, nothing in this book will persuade them that they should.  The subset of those readers who share Tushnet’s legal realism, they may cheer as the book catalogues the conservative majority’s accomplishments and their mastery of ten-dimensional chess.

Constitutional Hardball and Realistic Utopianism

Parts III and IV of Taking Back the Constitution explore progressive counter-strategies.  In Part III, Tushnet suggests some short-term strategies that involve playing constitutional hardball.  Part IV’s long-term strategies involve what Tushnet calls “realistic utopias.”  These schemes tend to be extra-constitutional, and some involve a fundamental re-assessment of our constitutional structures.
Tushnet discusses a few options just short of constitutional hardball.  He suggests a repeat of the Judiciary Act of 1801, in which the Democrats secure their control of the federal judiciary by creating new district and circuit court judgeships that they can fill with progressive appointees (pp. 208-09).  In the alternative, Democrats could introduce term limits for federal judges (pp. 210-14) or attempt court packing (pp. 214-19).  Tushnet devotes a surprising amount of space to these options, given that none of them are likely to occur absent a Democratic supermajority in the political branches and in most states.  If they were to achieve such a supermajority, these moves would not be necessary, as the Democrats could realize their agenda through political processes.

The arguments for constitutional hardball do not fare better. Tushnet acknowledges that Republicans are better at constitutional hardball than Democrats (pp. 223-25, 235-36), and that playing constitutional hardball might not be a great strategy, since legal norms serve a useful coordinating function (225-28).  It may be that Republicans prefer hardball because Republicans are more comfortable than Democrats with gridlock (p. 236). Once you have played constitutional hardball and undermined constitutional norms, you cannot unbake the cake.  Your political adversaries will concoct all sorts of norm-free baked goods, and there will be no moral high ground from which to oppose them.  If constitutional hardball is a bad long-term strategy, it is also a bad short-term strategy because it can only have long-term consequences.  Undermining norms does not guarantee that they will be replaced with newer, better norms.  The result might just be a normative vacuum.

Unhappy with our current constitutional order, and pessimistic about the probability of success with hardball tactics, Tushnet offers up what he calls realistic utopianism.  He suggests that we can amend our Constitution, but there is nothing realistic about doing so through the Article V amendment process.  The only amendment that has garnered any support recently is the balanced budget amendment (p. 262).  If we apply Tushnet’s realism to this proposed amendment, it seems reasonable to conclude that Republicans support it because it advances their objective of shrinking the federal government and eliminating New Deal and Great Society programs that are a central legacy of the Democratic Party.

Tushnet explores the possibility of amending the Constitution outside of the context of Article V through deliberative polling and virtual meetings along the lines of what Iceland tried to do in the aftermath of the 2008 meltdown (pp. 265-70).  I see nothing realistic about the utopian vision in which a diverse, politically divided federal union with a population well in excess of 300 million models its politics on that of a tiny state with a homogeneous population of less than 350,000.

Litigation Strategies and the Roberts Court

In support of popular constitutionalism, Tushnet notes that “[p]opular constitutionalism expresses democracy’s core commitment to popular self-government, while judicial supremacy expresses a commitment to government by elites” (p. 246).  The first half of the statement seems true, if a bit tautological; the second half does not seem right at all.  Judicial supremacy only expresses a commitment to government by elites if the judiciary is entirely immune to the pressures of democratic processes, which the legal and political science literature tells us it is not.  If Tushnet wants to democratize the judiciary, he could advocate for more sociological diversity on the federal bench.

Moreover, it is doubtful that our currently divided country could achieve consensus on any fundamental constitutional principles.  In these circumstances, taking the Constitution away from the courts might be impossible or it might be catastrophic.  The Supreme Court, after all, even with two Trump appointees this term, managed to extend federal protections against workplace discrimination to LGBTQ people.  It refused to countenance the federal government’s lawless attempt to end DACA, it resisted an attempt to reverse a four-year-old precedent that had preserved some vestige of reproductive freedom, and it unanimously spurned the President’s claim of temporary immunity from all criminal process.  In a decision the full ramifications of which remain unknown, the Court found that Indian sovereignty extends to nearly half of Oklahoma. The litigators in Bostock and McGirt crafted arguments that could appeal to Justice Gorsuch’s textualism.  Litigators similarly exploited Chief Justice Robert’s institutionalism and respect for procedural propriety in the DACA case and June Medical this term, as they did in the census case last term.

Our constitutional separation of powers remains efficacious, and judicial review has continued to be especially important in protecting the rights of minorities.  Judicial supremacy has its flaws, but if the alternative entails the versions of popular constitutionalism currently on hand, it may be a lesser evil. Moreover, judicial supremacy could be checked by means less untested and unpredictable than popular constitutionalism.  Tushnet rejects without much consideration the middle ground of departmentalism (pp. 254-55), in which each branch of the federal government and the states also gets its chance to say what the law is.  He does so despite having himself argued eloquently for a narrower understanding of judicial supremacy in critiquing the Court’s muscular embrace of it in Flores.
Tushnet provides a compelling diagnosis, consistent with his early writings, that rejects law’s autonomy.  But the critical project can do more.  Judges are constrained by the fact that they have to explain their legal conclusions in written opinions.  Most judges believe both that they have to follow the law, and that they need to be true to their individualized approaches to deciding cases.  Skillful attorneys have exploited these characteristics of judges to squeeze out some somewhat progressive opinions from our current, very conservative Court.

Untempered legal realism invites cynicism, and cynical law students become cynical lawyers who cry “a pox on both your houses” and live their apolitical lives.  In the world where cases are won and lost, progressive lawyers make use of insights regarding human psychology and find ways to drive wedges into the conservative block so as to form strategic alliances that can push the law in a progressive direction.  I prefer the walks and singles accumulated through the litigator’s Fingerspitzengefühl to the grand theorist’s constitutional hardball, which will produce more strike outs and errors than homeruns.
In Taking Back the Constitution, Mark Tushnet has given us a persuasive and thorough account of the Roberts Court’s constitutional jurisprudence.  He has shown that, notwithstanding their purported commitment to originalism, the conservative Justices tend to vote in accord with their political preferences.  They uphold laws that favor the Republican Party’s program and strike down those favored by Democrats, but they do so through a constitutional gradualism that keeps the country on their favored political trajectory without entirely resolving the hot-button issues that energize the Republican Party’s base.  Their gradualism enables the GOP to cultivate conservatives’ anger and harvest their votes in alternate Novembers, even as the Supreme Court gives the Constitution an increasingly conservative cast.
Although I am not persuaded by Tushnet’s hardball and utopian alternatives, they are intriguing.  The books first 200 pages provide a readable, deft, and largely persuasive account the Roberts Court.  Law students and practicing attorneys can learn a great deal about constitutional doctrine and politics from its pages.  Scholars of constitutional law can only admire the concision and precision with which Tushnet surveys the field.
D. A. Jeremy Telman is Professor of Law at Valparaiso University Law School. You can reach him by e-mail at Jeremy.Telman at

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