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 marquette.edu.