Monday, August 03, 2020

Constitutional meaning at a time of democratic crisis

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).

Julia Azari

Notorious Supreme Court decisions are central to theories about regime decline in American politics. Leading up to the Civil War it was the Dred Scott decision, which encapsulated not only a court set on preserving the rights of slave states and slave owners, but also the evil of a president who sought to influence the decision. The Court is also a key villain in the drama of the New Deal, striking down the president’s new programs and asserting clunky, unworkable interpretations of federalism and the commerce clause, in opposition to the will of the majority.

Taking Back the Constitution wrestles with the questions posed by this familiar narrative, forcing from them deeper and more nuanced answers about how judicial ideas work within, and at the transitions between, constitutional orders. Part of the project is to envision how constitutional thinking might work in a new progressive political era under a Democratic majority. In my response to this fascinating book, I want to pursue two lines of inquiry. First, what are the roles of Courts and the Constitution in restoring not just a flagging Constitutional regime but a sagging democracy? What role could constitutional law, and those charged with adjudicating it, play in restoring – or perhaps creating for the first time – the ability of Americans to fully, equally, and meaningfully rule ourselves? The second question I ask is how the court and constitutional law might interact with the rest of the institutional environment in order to do so. In order to this, I offer some thoughts about what I anticipate the next political and constitutional order might look like, and consider three potential ways that the Supreme Court might interact with the rest of the political system: making meaning, taking partisan sides, and defending majorities.

Tushnet’s account offers some compelling answers about what the court’s role has been in contributing to this decline, from salient decisions like Shelby v. Holder and Citizens United to the larger idea of weaponizing free speech. In other areas, the court’s role is more difficult to pin down – for example, Tushnet argues that a cohesive “business agenda” has not emanated from the court, because “what results favor business is often unclear.” (142)

The careful consideration of the development of originalism in the current Constitutional regime also makes the case that originalism is not devoid of political agendas; in fact, it is the opposite. Under some conditions, Tushnet argues “originalism can be used to stop liberals from achieving their legislative goals while not interfering with conservatives’ favored laws.” (42) Judges working within this framework have made decisions that favor their “side” at least as often as those who operate according to other judicial philosophies. It is unlikely that the partisan team mentality will disappear any time soon, or that its implications for rules about redistricting or voting rights will lessen. The civics textbook version of the Supreme Court says justices should not act as members of partisan teams. However, the next best thing might be to fully incorporate the court into the constitutional order and fully admit that the team mentality drives some decisions.

But the failures of originalism as a judicial philosophy run the risk of obscuring the role of the actual Constitution in the decay of Constitutional orders. The document itself was written in a context in which a nationalized, industrial economy did not yet exist, and without a real sense of the equality of women or non-whites. Contemporary instances of this problem include lack of Constitutional boundaries around executive power, the absence of a framework in which to understand campaign finance limitations, and a Constitutional guarantee of voting rights. The text of the Constitution mostly envisions representation as a geographical and procedural affair, and thus the textual implications for the current crisis of representation and responsiveness are limited. This is where interpretation comes in.

This sets us up for the role played by the courts in establishing constitutional regimes – courts have a vital role in making Constitutional meaning that shapes other aspects of the regime, from presidential and Congressional response to the “popular constitutionalism” that Tushnet describes as an alternative to judicial supremacy. We can’t fully understand how the court functions in a new – or transitioning – constitutional order without fully understanding how its capacity to make political, legal, and Constitutional meaning affects the rest of the political system.

Citizens United makes for a good example here. The decision has come to stand in for the campaign finance system as a whole, and has been associated with the line “corporations are people.” The significance of this case for politics – including partisan politics – has gone well beyond what the court likely intended. The decision not only allowed for the creation of so-called “super PACs,” but also for an entire alternative political discourse to develop around them, including candidates symbolically disavowing super PACs and a new emphasis on small donors as a means of emphasizing political authenticity.

Other examples of the court’s reaction of meaning abound throughout the text. Scalia’s opinion in D.C. v. Heller helped to entrench a distinction between “common sense” gun regulations, such as those that apply to felons, and other kinds of restrictions. This framework is common among gun control advocates, again demonstrating that the court may not always be able to control the meaning that it makes.

This meaning-making potential takes on particular importance at a moment of democratic crisis, in which the most fundamental democratic concepts – representation, equality, influence – are constantly contested. The basic question of what kind of political system the Constitution establishes and supports is part of the regular debate of politics, with many potential answers.

The court’s capacity to shape the meaning of its decisions and of concepts in Constitutional understanding also intersects with its relationship to partisanship and the “team” mentality that has emerged around partisan polarization. As Tushnet notes in his discussion of Constitutional hardball, “Hardball becomes an attractive strategy when a constitutional order begins to decay, and in the interregnum between orders.” (239) An interregnum, with sharp competition between the two parties, could last a long time. It could also define the next constitutional order. The Supreme Court could use its power to define meaning in a few ways – it could challenge and subvert the way people understand teams and constitutional issues, offering, for example, liberal defenses of religious freedom or conservative perspectives on LGBT rights (as we saw in the Bostock v. Clayton County decision). Or it can define issues in ways that continue to allow the sorting of the current moment to subsume all other considerations, legitimating culture war linkages and “first amendment weaponization,” and even offering new such meanings. This role for the court would blur the distinction between judicial supremacy and popular constitutionalism even more than it already has been blurred, and illustrates how the court, despite its formal removal from electoral politics, influences the national political debate.  

Another potential feature of an impending new political order, related to the strength and competitiveness of partisan “teams,” is the possibility for serious political fragmentation and minority rule. We certainly see this in the composition of the national government today – we have a president who was nominated with a plurality of his party’s votes in the primary, and who lost the popular vote in 2016. The Senate similarly tilts power toward political minorities, through the routine practice of the filibuster and through the overrepresentation of small states. The national governing agenda has pushed rightward, particularly on social issues, as national majorities head in the opposite direction. As presidents and members of Congress have increasingly fragmented political incentives to appeal first and foremost to their political bases, it is possible that the Court will have the strongest incentives to follow a more diffuse political majority. This incentive, however, loose, might be identified as the interest in developing a legacy or maintaining court legitimacy. We saw some evidence of these possible tendencies in the 2020 cases on cultural issues like abortion and LGBT rights (though the former was narrowly decided). Thus far, the structure and policies have held to one pattern: more liberal majorities and conservative minorities in power. But it is possible that over the course of a long constitutional regime this could shift, and that in either case the court could find itself the majoritarian voice in a fragmented political system. This would be a reversal from the role played by the courts in both the originalist regime and during the Warren court years. Instead of positioning itself as the protector of political minorities from the tyranny of the majority (always a dubious proposition anyway), the coming constitutional order might see the court as the vocal defender of the national majority against unpopular, unconstitutional legislation – at least on some issues.

Tushnet’s study of the evolution of Constitutional thought, and the possibilities moving forward, offers a useful framework for thinking about the court and the Constitution as part of politics, rather than separate from it. Each of the elements I’ve listed hypothesize a powerful role for the court in shaping the political environment for the other branches. The court may be looking at an especially crucial role in defining election law and presidential power, as the president of the United States, on July 30, 2020, floated the idea of delaying the November election. Should it come to that, a decisive statement by the court on the Constitutional meaning of a regularly scheduled election will be an important foundation for any new political order.

Prof. Julia Azari is Associate Professor and Assistant Chair in the Department of Political Science at Marquette University. You can reach her by e-mail at julia.azari at

Older Posts
Newer Posts