Mark Tushnet
Conventions often reflect enduring values, and so I begin
with the conventional statement of appreciation for the seriousness with which
the contributors to this Symposium have taken my arguments. As several
contributors suggest, I wrote the book in a style intended to make its
arguments accessible to interested nonspecialist readers. One consequence was
that the political/legal theory underpinnings of the arguments weren’t fully
exposed. So, for example, I refer to Stephen Skowronek and to legal realism, but
don’t explain what revisions I’ve made when I “use” Skowronek, nor do I defend
my particularly strong version of legal realism.
In this response to the Symposium I’ll try to describe in a
bit more detail some of those underpinnings as a way of engaging with the
contributors. Somewhat arbitrarily, I’ve organized my comments under the
headings Past, Present, and Future.
The Past. Several contributions raise questions about
the guiding argument that we are approaching an inflection point in the
constitutional order, with the demise of the Reagan constitutional regime
either at hand or already in the past. (My version, that we’re in an
interregnum, takes the latter position, but nothing much turns on whether the
Reagan regime is dead or staggering on its last legs.) Jack Balkin agrees with
me on this point, Amanda Hollis-Brusky disagrees with both of us. I’m tempted
to leave it at that, but I think there’s a theoretical/methodological
difference between me and Professor Balkin that’s worth bringing out. (I’ll say
more about Professor Hollis-Brusky’s substantive argument in the final section
of this Response.)
I start with the observation that, though I find that
Professor Skowronek’s arguments provide a great deal of illumination for
understanding modern constitutional development, I occasionally worry about
using his framework too mechanically. In part that’s why I supplement his
concept of “political time” with my idea of “judicial time” (and, frankly, I
think that sort of concern might motivate his own introduction, with Karen
Orren, of the theoretical concept “intercurrence,” which in their domains of
presidential and congressional studies does something like the same work that
“judicial time” does within mine.)
I get even more nervous when Professor Balkin introduces two
additional theoretical constructs – polarization and rot – into the analysis.
These look like general concepts. So, for example, Professor Balkin says
that regime transitions are relatively smooth when polarization is low, more
difficult when it is high. We’re already dealing with only a handful of regime
transitions. Throw in polarization and we have two cases in one category and
one in the other. Adding “rot” to the mix, and things get even worse, because
as far as I can tell, constitutional rot isn’t associated with past regime
transitions (or anything else systematic); the First Gilded Age is there, but
what it has to do with regime transitions is obscure. What we have, then, is a
narrative description of the current situation using metaphorical
generalizations that support Professor Balkin’s more pessimistic assessment of
that situation. Here D.A. Jeremy Telman’s characterization of my book as
“providing a master narrative” through the use of “literary tropes” seems to me
exactly right. Pessimism might be warranted, but not, I think, because we have
anything approaching a well-founded set of theoretical propositions predicting
(even weakly) that hard times are ahead.
And, not entirely incidentally, my theoretical “modesty” (in
my self-understanding) explains why I don’t offer the kind of external
explanation for the shape of the current constitutional order that Aaron Belkin
offers. I’m pretty sympathetic to something along the lines of the account he
provides, but I’m a constitutional lawyer. Though in the past I have gestured
in the direction of connecting constitutional orders to the economic order, I
really have no expertise on such matters. And, at least as I understand my own
work, nothing in it turns on whether Professor Belkin’s story, which – again –
I intuitively agree with (mostly), is right or wrong.
As to legal realism, I can be brief. Stephen Griffin and
Professor Telman both suggest, in slightly different ways, that I underplay the
effect the “law” might have on what justices do. Professor Griffin refers to
“law-related reasons,” Professor Telman to doctrinal “legacies.” But, on my
version of legal realism, law and doctrine is fully accounted for in the
“moves” good lawyers make in constructing arguments. To take Professor Telman’s
version: Suppose some existing doctrine might seem initially to weigh against
the result a judge thinks it would be nice to reach. All that means is that the
judge has to do more analytic work than she would have to do in the absence of
the doctrine – come up with some moves that she wouldn’t have to make
otherwise.
I acknowledge that sometimes judges don’t come up with moves
that are fully satisfying. My favorite examples come from Chief Justice Charles
Evans Hughes and Justice Samuel Alito, neither of whom is a slouch at legal
analysis. At a crucial point in Jones & Laughlin, Hughes throws up
his hands and says that a prior decision “is not controlling here.” And, at a
similarly crucial point in Matal v. Tam, Justice Alito does the same
thing, saying, almost in terms, that the cases that pose an analytic difficulty
are just different from the case at hand.
My version of legal realism has some stories to tell about
such examples. Sometimes judges run out of time before they can get all the
work done; sometimes neither they nor their law clerks are just not talented
enough to figure out how to deal with the difficulty (I have a story to tell on
this matter about an opinion I worked on during my term as a law clerk to
Justice Marshall); sometimes they decide that their initial inclination “just
won’t write” (this is related to the preceding point); and sometimes they just
bull their way through to the result, as Hughes and Alito did. My point here is
simple: To say that judges have law-related reasons or face (or create)
doctrinal legacies is to take a position against my version of legal realism. I
might be wrong (though of course I don’t think so), but if I am it’s not
because I don’t understand the phenomenon of law-related reasons and doctrinal
legacies.
The Present. Writing this kind of book poses a
distinctive problem. You’re talking about recent Supreme Court decisions. You
have to finalize a manuscript at least a year in advance of publication. The
Court doesn’t care. It continues to churn out opinions, and you just can’t take
the most recent Term’s decision into account. Put another way, the Court can
always “falsify” (unintentionally, of course) any claims you make about its
work.
The only way to deal with this problem is to take a wider view
than a single Term – come up with a sort of “rolling average” describing the
Court’s general tendencies. You have to be able to say, “Well, sure, June
Medical fits into my story awkwardly, but if you look at the pattern over any
two- or three-Term period my story is better than any alternative.” (I should
note, for the record, that Bostock is completely compatible with the
story I tell about the end of one front in the culture wars, and that my story
about abortion is that Roe is vulnerable, which isn’t disconfirmed by June
Medical and might even be supported by Chief Justice Roberts’s separate
opinion there.)
The current embodiment of this problem is “John Roberts the
institutionalist.” I don’t think I use either of the following snarky comments
in the book, but I’ve said them before: (1) John Roberts is liberals’ Obi-Wan
Kenobe, their only hope on the Supreme Court. (2) Roberts offers liberals the
80% solution: “I’ll give you my vote 20% of the time so that you can tell the story
about my institutionalism, but I’ll go with Republicans 80% of the time, which
might not satisfy the most fanatical Trumpists but is pretty darn good.” (Think
here of how the votes have gone in voting rights cases, and especially in what
Steven Vladeck calls the Court’s shadow
docket.) Professor Belkin’s contribution to this Symposium shows what’s
wrong with the “Roberts as institutionalist” story when you look, as you
should, at more than a selected handful of decisions.
The Future. Several of the contributions focus on the
book’s final section, on what constitutional regime might replace the Reagan
constitutional order. I describe three possibilities. The first is that the
interregnum might continue for a while, with divided government and legislative
gridlock, or (more interesting) a unified Democratic government whose majority
isn’t willing to play hardball with the Supreme Court even if Democrats modify
or get rid of the legislative filibuster.
My discussion in the book says that the Court is well-positioned to, and in my
view would be likely to, thwart Democratic legislation in ways that will
“demonstrate” to enough members of the public that Democrats can’t get anything
done (supplemented by journalists’ seemingly genetic predisposition to write
“Democrats in disarray” stories). The result? A new Republican constitutional
order after the interregnum’s end.
The second possibility is the emergence of a Trumpist
constitutional order. Because Trump is, to say the least, not a good
articulator of a constitutional vision, at the time I had to finish the
manuscript I couldn’t do much to describe what such an order would look like.
Now we have more material to work with, and I think some scholar will soon make
her or his name by writing a good account of the constitutional visions
available in speeches by Senators Hawley and Cotton, Pompeo’s “Rights Commission”
report, and Adrian Vermeule’s provocative article.
There will be continuities between the new Trumpist ideology
and the old Reagan one, such as a commitment to a strong version of the unitary
executive (though I also suspect that a new progressive constitutional order,
were it to materialize, would have a similar commitment, though not grounded in
a purported originalism). And in the short run, as the Court tries to manage
the transition from the interregnum to the new order, we might see older
Reaganite themes being sounded. To that extent Professor Hollis-Brusky’s
observations about the current Court ring true. But, I think it likely a
mistake to believe that the Court’s Republican appointees are going to be Never
Trumpers if a Trumpist regime consolidates.
The constitutional
ideology of a consolidated Trumpist order would, I argue, be significantly different
from that of the Reagan one. In the Reagan constitutional order conservatives
criticized substantive judicial review because, they argued, courts should
defer to the expressed will of democratic majorities. That was fine when
Republicans thought they controlled legislatures but not the courts, but it
became unnecessary when they gained control of the courts (and even became problematic
when they controlled the courts but not blue state legislatures).
The result is a defense of substantive judicial review
(I discuss the idea of “judicial engagement” with economic regulations as an
example) beyond what even current versions of originalism contemplate. That
defense will, I think, edge gradually in the direction of rulings about the
government’s duty to promote substantive values, as the emerging
Cotton-Hawley-Pompeo-Vermeule argument has it. We can see glimmerings of that
possibility in the Espinoza case, which provides the doctrinal resources
for holding that states that operate public schools must provide equivalent
financial support to religiously affiliated schools. And there is already
circulating in conservative circles the argument that the Constitution’s substantive
due process guarantee of life to all persons requires that abortion be
prohibited.
Of course we can’t know the precise contours of a Trumpist
constitutional ideology of affirmative government duty, which will be worked
out gradually by Trumpist courts and its supporters in the legal and
political-theory academy (as Julia Azari’s contribution indicates). Yet, even
broaching the possibility of such an ideology suggests real differences from
the conservative ideology of the Reagan constitutional order.
And, last what of a consolidated progressive constitutional
order? My discursive strategy in the book switches when I take up this
question. Rather than describing a substantive progressive constitutional
vision parallel to the Trumpist vision I sketch, I simply ask that progressives
“think big.” That’s the point of realistic utopianism. Of course utopian
projects aren’t going to be adopted in the first year of a consolidated
progressive constitutional order, so I’m unmoved by the skepticism several
contributors offer about whether utopianism is realistic in the short run.
And I’m similarly unmoved by the argument that the
progressive response to conservative hardball tactics is to continue to play
the patsy because responding in kind threatens a downward spiral into a chaos
without conventions to serve as guardrails in a legal realist world where law
cannot guide well enough. I discuss the reasons for my lack of concern in the
book, and won’t repeat the arguments here, except to make two points. First,
arguments about whether some act counts as hardball take the same form that
legal arguments do, so if law can’t be provide reliable set of guardrails,
neither can norms. And second, although the social science is contested,
there’s a good case to be made from empirical studies in game theory that the
best response to hardball tactics is a limited strategy of “tit for tat,” that
is, playing hardball in return (for a while). But, again, I don’t think there’s
any evidence at all that continuing to be steamrollered (to shift the metaphor)
serves to rebuild guardrails that have been dismantled.
Realistic utopianism takes its motto from Rousseau: think
about people as they are and the laws as they could be. So, it’s not a
realistic utopian proposal to solve the climate crisis by colonizing Mars or
engaging in terraforming on a grand scale even if either one would indeed solve
the crisis. The Green New Deal, though, is another matter: It doesn’t require a
“new environmental person” (akin to the “new Soviet man” that drove Soviet
utopianism into the ground). It “simply” takes a commitment to actually do it.
But, of course, there’s nothing simple about the process by
which achievable but currently utopian proposals become politically feasible
(are put “on the table,” in my metaphor). Professor Balkin points this out with
his references to the movement-based popular constitutionalism of Professor
Post and Siegel (which, I add as a point of personal privilege, is something I’d
written about independently of their work), Talking about formally amending the
Constitution (Professor Griffin’s advocacy for “amendment politics”), or
talking about adopting a new Constitution without going through the Article V
process, is a way that people like me can contribute to that process. (Here
it’s worth mentioning that, as Professor Belkin and other activists on court
reform observe, merely raising the possibility of Court-packing might have
tempering effects on how individual justices do their job.) But, as I emphasize
in the book, it’s the talking about that matters, not actually
implementing any specific constitutional reform.
The thing about realistic utopianism is this: The things
that seem impossible are impossible – until they aren’t. The phase-shift
can be quite dramatic, as this year’s version of the Black Lives Matter
movement indicates: Who would have thought in January 2020 that the Mississippi
legislature would vote within the year to eliminate a version of the
Confederate battle flag from the state’s official flag? Or, as Nike used to
say, “Just do it.”
Finally, a truly minor point – defending my “on the table”
metaphor as better than Professor Balkin’s “on the wall” one. I get the idea of
throwing lots of ideas out there and seeing which ones actually grab hold; that
was FDR’s approach during the New Deal. Note, though, how Professor Balkin describes
something that ends up on the wall: “an ugly food stain.” I suppose that’s
right, in a couple of senses, about the broccoli argument against Obamacare.
But, really, is that how we want to think about the ideas people come up with
for legal and political reform – the ones that stick leave ugly stains? (I
think here of the ingenious [maybe “off the wall” at the time] preclearance
mechanism in the 1965 Voting Rights Act, taken down by another invented
argument – the “sovereign equality of the states” – by Chief Justice
Roberts.) The “on the table” metaphor,
in contrast, leads us to think about discussing new ideas on the merits, as realistic
utopianism would want – perhaps a bit too antiseptic an image of a purely
deliberative politics, but, for me, more attractive than thinking about how our
ideas can leave ugly stains on the wall.
Having begun with a reference to the value of conventions,
and having discussed along the way the value of sometimes breaching
conventions, I end with a return to the conventional thanks to all the
contributors for leading me to think again (and perhaps more deeply) about some
of the issues I raise in Taking Back the Constitution.