Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Back the Constitution is an ambitious book that covers a wide swath of
territory in its attempt to explain, critique and offer alternatives to the
contemporary Supreme Court and its constitutional agenda. While it treads over
fairly well-trodden territory in its critique of the Roberts Court,
Originalism, and the conservative counterrevolution more broadly, it takes a
more constructive turn towards the end, offering potential alternatives, “possibilities”
(ix), and ways of decentering the courts and judges altogether in favor of a more
“popular constitutionalism” (243-257).
Scholars and practitioners interested in
future directions and possibilities for constitutional law and judicial politics
post-Trump will find plenty of fodder for discussion and debate in this book.
In this essay I want to take to task an
assertion that is repeated multiple times in Taking Back the Constitution – that the Reagan Revolution and the
Reagan constitutional regime is decaying and will soon be replaced by something
else. As someone who keeps close tabs on the Federalist Society and the conservative
legal movement, this struck me as startling.
All the evidence I can find suggests, to
the contrary, that the Reagan Revolution is alive; thriving even. I also
suggest that President Trump’s record breaking 200 plus appointments to the
federal bench – including two Supreme Court justices – will not be a turning
point in the conservative constitutional order. Because of who these nominees
are, because of their vetting and ties to the Federalist Society network – an
organization that, at its core, was designed to nurture, develop and implement
the agenda of the Reagan revolution – I suggest that the Trump administration
has, in fact, extended the life-cycle of Reagan-era constitutionalism.
the Death of the Reagan-era Constitutional Regime
Professor Tushnet asserts in the
introduction to Taking Back the
Constitution that the Reagan constitutional order – the conservative
constitutional order that emerged in response to the Warren Court and which
grew up with and around the Reagan presidency – has already started to break
down: “As constitutional orders do, the Reagan order began to decay, in part
through political blunders by George W. Bush” (viii).
Curiously, Tushnet does not explain what
evidence exists for this “decay” or what “political blunders” Bush II committed
to expedite the death of the Reagan order. He then goes on to assert that the
Trump presidency itself demonstrates that we are at some kind of “inflection
point” and that we are on the brink of a new constitutional order: “Either
conservative constitutional law will reconstruct itself along new lines, or it
will be replaced by a progressive alternative that is as yet unclear”
The claim is largely dropped for most of
the book. After all, Tushnet need not make this claim at all to either a)
critique the Roberts Court and Republican jurisprudence; b) offer progressive
alternatives. The claim is, at best, orthogonal to his project. Yet, it
reemerges again at the beginning of Part Two – “The Reagan constitutional order
appears to have exhausted itself with nothing to replace it” (109) – again at
the beginning of Part Three – “The interregnum between the end of the Reagan
revolution and the emergence of its successor might be extended for another few
years” (189) – and again it sneaks in during Tushnet’s discussion of popular
constitutionalism – “All occurred when the Reagan constitutional order appeared
to be on its last legs, with something new likely to arrive between 2016 and
I’m not sure if the confidence with
which Professor Tushnet proclaims the impending death of the Reagan-era
constitutional order has more to do with time itself – constitutional orders
can only last, say, thirty or forty years before they inevitably die off – or
if it has more to do with the impact he believes Trump and Trump’s politics
will have on the jurisprudence and constitutional vision of his 200 plus
judicial nominees. Either way, it’s not explained in Taking Back the Constitution.
Whatever his reasons for believing this,
I suggest that there is ample evidence that the Reagan revolution is alive and
well on the federal bench. Moreover, while we might expect conservative
jurisprudence to take on a bit of a Trumpian flavor – let’s say, with an
increased emphasis on permitting immigration restrictions – the project of
conservative jurisprudence remains firmly rooted in the ideas, the agenda and
the people of the Reagan
Reagan-era roots of “the Trump constitutional order”
In the preface to Taking Back the Constitution Professor Tushnet describes what a
future (imminent future?) “Trump constitutional order” might look like:
The characteristic institutions of the Trump constitutional
order would likely involve the deconstruction of the administrative state; its
characteristic ideology is economic and social nationalism; and its
characteristic policies are tariffs and immigration restrictions (ix).
I admit I don’t see how a constitutional
ideology of “economic and social nationalism” would play out in the courts as
currently constituted. If anything, the resurrect Lochner school of “judicial engagement” would
seem to want to return us to an era of laissez-faire economics rather than
embrace and judicially sanction economic protectionism. Moreover, “social
nationalism” reads to me like FDR-era socialism. Maybe what Professor Tushnet
meant to describe was “ethnic nationalism”
which would resonate both with Trump’s anti-immigrant nationalist politics and
with the three decades-long arc on the Supreme Court to move from
color-conscious remedies to a “color-blind constitutionalism.” But I’ll leave both
of those aside for a moment and hew more closely to what I know best.
To that end, I want to address the first
pillar of this so-called “Trump constitutional order” – the “deconstruction of
the administrative state.” Professor Tushnet spends a good amount of time
examining the deconstruction of the administrative state (pp. 147-163). He
refers to this as Trump advisor “[Steve] Bannon’s project” (163). But anyone
who has studied the Reagan era, even in passing, will recognize that the
“deconstruction of the administrative state” was one of the primary concerns of
the Reagan administration. It was one of the key motivating factors for the
organization of the conservative legal movement itself and for the founding of
the Federalist Society for Law and Public Policy Studies.
As I and others have shown in previous
scholarship, the Reagan administration’s preoccupation with dismantling the
administrative state has been documented through primary accounts and interviews
with Reagan era lawyers,
archival evidence from the Reagan Library and Office of Legal Counsel memos and – perhaps most persuasively – is laid out
coherently in two documents from the Reagan Justice’s Office of Legal Policy: The Constitution in the Year 2000 and Guidelines in Constitutional Litigation.
There, in plain sight, Reagan justice
department lawyers laid the legal groundwork – or as I say the “intellectual
capital” – for dismantling the administrative state, and outlined their agenda
for how it could happen over the next few decades. In his book, Professor
Tushnet examines two principal theories conservatives have deployed and will
continue to deploy to unravel the administrative state: the unitary executive
theory and the non-delegation doctrine. As I have shown, both of these theories
were nurtured and developed in the Reagan administration as part of their
longer term agenda to take back control of the law.
Speaking of hiding in plain sight, the
two “leading academic conservatives” Professor Tushnet cites to illustrate how
“Bannon’s” political program to “deconstruct the administrative state” is
translated into a legal or constitutional agenda, are in fact two Reagan era
alumni who also happen to be law professors and the co-founders of the
Federalist Society for Law and Public Policy Studies: Steven Calabresi and Gary
Perhaps the Reagan-era roots of
“Bannon’s” political program should not surprise us. Various accounts have
documented Bannon’s long-time admiration of Ronald Reagan.
But it bears repeating that the deconstruction of the administrative state is a
quintessentially Reagan era agenda item. This fact is important because it
seriously calls into question Professor Tushnet’s proclamation of the Reagan
constitutional regime’s impending death or even decay.
That being said, Trump’s presidency has
played a role in helping to extend that revolution. It is a good bet that the 200
appointments Trump has made to the federal bench, for reasons I describe below,
will have the effect of extending core aspects of the Reagan constitutional
order further and deeper into the next few decades. We can see the Supreme
Court’s recent ruling in Seila Law as
part of this agenda; a blow to independent agencies nearly forty years in the
as the hallmark of Trump-era constitutionalism?
Professor Tushnet suggests one area that
was not of particular concern to the Reagan revolutionaries; an issue that
could be fairly understood as quintessentially Trump – immigration.
With the exception of the
recently-issued ruling preventing the dismantling of the Deferred Action for
Childhood Arrival program, the five conservative Justices on the Supreme Court
have been agreeable accomplices to Trump’s anti-immigration political agenda. From
greenlighting the infamous “Moslem Ban” (or travel ban) in Trump v. Hawaii to approving plans to redirect Pentagon funds for
the southern border wall, to giving a stamp of approval for a variety of new
restrictions for asylum and green card seekers, the Supreme Court has been a
powerful “enable[r]” of Trump’s anti-immigrant agenda.
Immigration (or rather anti-immigration)
was not a chief concern of President Ronald Reagan. In fact, Reagan’s singular
achievement with regards to immigration involved granting asylum to 2.9 million
immigrants who had entered the country illegally.
That being said, it is important to note how Reagan-era intellectual capital
developed in service of building a robust executive branch free from
congressional (and judicial) oversight has benefitted the Trump administration
in these immigration cases.
The true test of whether immigration
will become a hallmark of a new, so-called “Trump constitutional order” will be
if these cases continue after this administration is out of power. Will
entrepreneurial litigators go on the offensive and continue to push an
anti-immigrant agenda through the courts after Trump is out of office? If so,
how far will courts be willing to extend the unitary executive theory in order
to accommodate this agenda?
the Reagan-era constitutional order resists “decay”
Maybe Professor Tushnet is correct in
his assumption that constitutional orders typically decay or die off after
thirty or forty years, replaced by the vision and values of the next dominant
political regime. Maybe this is how “judicial time” (ix) usually works, to
borrow has adaptation of a concept deployed in the American political
But perhaps the reason we are not seeing
the decay or decline of the Reagan revolution is precisely because of the
existence of a powerful organization dedicated to the maintenance of these
ideas and of this agenda. As has been well-documented, the Federalist Society
for Law and Public Policy Studies grew up alongside of and developed its core
and guiding ideology inside of the Reagan administration.
As it has matured and extended its reach
into all levels of the legal profession, the Federalist Society has also extended
the influence of the Reagan administration and its ideas by training and socializing
new generations of law students and lawyers under this dominant constitutional
ideology. The Federalist Society’s core leadership – many of whom were the same
“young Turks” of the Reagan administration whom Charles Fried described in his
have acted as gatekeepers, defining what is in-bounds in terms of acceptable
conservative legal ideology and marginalizing ideas and actors it considers to
This, in turn, goes some way towards explaining why the conservative Christian
legal movement, a movement that has seen itself as outsiders and has been
marginalized within the Federalist Society since the beginning, has had such a
hard time making in-roads despite the overwhelming electoral and political
support this group has shown for the GOP.
As Steven Teles, Ann Southworth and I have all documented empirically, the
conservative legal movement has and continues to have a distinctly libertarian,
deregulatory, pro-business bent despite the inroads conservative Christians
have made within the GOP politically.
Because, as I write in Ideas With Consequences, the Federalist
Society has “a de facto monopoly on the credentialing of rising stars”
on the legal right, only those who are known to and groomed by the Federalist
Society network are tapped for legal positions within the GOP administration
and for federal judgeships. The Federalist Society’s leading role in judicial
appointments accelerated with the George W. Bush administration and now, with
the Trump administration, the Federalist Society has “in-sourced” judicial
nominations, to borrow an oft-quoted and repeated bold admission from Don
McGahn, Federalist Society member and Trump’s former White House counsel.
Without repeating in painstaking detail what academics and journalists alike
have documented and now know, it’s important to recognize that Trump judges are
Federalist Society judges.
And Federalist Society judges, by and large, belong to the Reagan
Seen through this lens, perhaps the
Federalist Society’s singular achievement has been in figuring out how to
thwart the decay of the constitutional order that they helped construct; an
order that also helped to construct them.
 See, e.g., Randy Barnett, Our Republican Constitution Princeton
University Press (2004); David Bernstein, Rehabilitating
Lochner: Defending Individual Rights Against Progressive Reform University
of Chicago Press (2012).
 See generally, Steven Teles, The Rise of the Conservative Legal Movement.
Princeton University Press (2008) and Amanda Hollis-Brusky, Ideas with Consequences: The Federalist
Society and the Conservative Counterrevolution. Oxford University Press
 Steven Teles, “Transformative
Bureaucracy: Reagan’s Lawyers and the Dynamics of Political Investment.” Studies in American Political Development. Vol
23, Issue 1 (2009): 61-83.
 Amanda Hollis-Brusky, “Helping
Ideas Have Consequences: Political and Intellectual Investment in the Unitary
Executive Theory, 1981-2000. Denver
University Law Review. Vol. 89(1): 197-244.
 Dawn E. Johnsen, Ronald Reagan
and the Rehnquist Court on Congressional Power: Presidential Influences on
Constitutional Change, 78 IND. L.J. 363, 389, 397 (2008).
 Non delegation doctrine see
Hollis-Brusky dissertation; for unitary executive theory see Hollis-Brusky 2011
 Tushnet at 147 Citing Steven G.
Calabresi & Gary Lawson, “The Depravity of the 1930s and the Modern
Administrative State,” Notre Dame Law Review 94 (Dec. 2018): 821-66.
 Compare Seila Law with The Constitution in the Year 2000 at 180 (“The
‘unitary Executive’ principle of Article II also provides a basis to question
the viability of ‘independent’ agencies in their present form. The Court could
take a Madisonian view that, because the Constitution vests all executive power in a President, Congress may not give
executive power to agencies that are not under the President’s control. Under
this approach, the Court could find that the ‘independent’ agencies do not have
a place in the constitutional structure, and require that they be reorganized
with their powers reassigned to the respective branches of government”)
 See Hollis-Brusky, “Helping Ideas
Have Consequences.” Supra note 5 and Teles “Transformative Bureaucracy” supra
 Charles Fried, Order and Law: Arguing the Reagan
Revolution. Simon and Schuster (1991).
 On how legal arguments move from
being “off-the-wall” to acceptable legal craft see Jack
M. Balkin and Sanford Levinson, “Understanding the Constitutional
Revolution,” Virginia Law Review 87 (2001): 1045. For the role the Federalist Society
plays as gatekeepers of acceptable or mainstream conservative legal ideas see,
generally Teles 2008, supra note 3 and Hollis-Brusky 2015, supra note 3.
 See Amanda Hollis-Brusky and
Joshua Wilson, Separate But Faithful: The
Christian Right’s Radical Struggle to Transform Law and Legal Culture. Oxford
University Press: October 2020.
 On the libertarian-leaning core
of the conservative legal movement see Teles 2008, supra note 3. On the
continuing divisions between the secular and Christian conservative legal
movements see Hollis-Brusky & Wilson 2020, supra note 16, and Ann
Southworth, Lawyers of the Right:
Professionalizing the Conservative Coalition University of Chicago Press:
 See Hollis-Brusky, Ideas with Consequences, supra note 3 at
152 and, more generally, 152-155.
 See, e.g., Lydia Wheeler. “White
House lawyer: ‘Completely false’ that Trump outsources judicial selections. The Hill. November 17, 2017 (“White
House counsel Donald McGahn on Friday blasted as ‘completely false’ the
criticism that President Trump has outsourced his judicial selection process to
the conservative Federalist Society. ‘I’ve been a member of the Federalist
Society since law school. Still am, so frankly it seems like it’s been
in-sourced,’ he said, drawing laughs at the National Lawyers Convention, an
annual event hosted by the group”). Retrieved from https://thehill.com/regulation/360981-white-house-lawyer-completely-false-that-trump-outsources-judicial-selections (accessed July 9, 2020).