Tuesday, September 22, 2020

Contextualizing Judicial Constitutional Theory

Guest Blogger

For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). 

Mariah Zeisberg

Jack Balkin’s The Cycles of Constitutional Time was enraging in the beginning, wildly compelling in the middle, and intriguing at the end.

Other posts gave the basic outlines of the book, and I won’t repeat.

Why do I call this work enraging? While Skowronkek sees Balkin taking “full measure of the gravity of our situation,” I found Balkin’s cautious optimism about the capacity of republicanism, in any measure, to outlast a 2020 Trump victory honestly terrifying. Balkin does emphasize that it’s political work, creativity, and courage —in other words, agency & luck, the most contingent of all forces – that propel political time through its cycles of dissolution and recreation. But he doesn’t linger on the idea that recurrence through a “cycle” of political time is consistent with the obliteration of individual rights and republican governance. Polarization & depolarization cycles, regime cycles, cycles of liberty – poor comfort in the context of an existential values threat. Everything may work out in the long run, but as Keynes reminded us, “in the long run we are all dead.” And maybe in the not-so-long-run; in failing to mention climate change, Balkin never really considers that life as we know it may be wrapping up in the next ten years. If you’re like me, and you need work that mirrors back to you the absolute desperation of our present situation, I’d skip the opening. 

I’d also take the core premise of the book, its ambition to name cycles and on this basis provide a diagnostic for the healthy functioning of judicial structures and politics, with some lightness. I don’t think the cycles can do heavy analytic lifting, because all three of them are underspecified, and one of them – constitutional “rot” and “renewal” -- includes two indicators (polarization and loss of trust) that are coincident with the second cycle (polarization and depolarization). It gets a bit confusing. However, what is obvious is that Balkin is an extremely gifted observer of American politics. The language and logic of cycles gives this gifted observer a good-enough structure for anchoring a variety of controversial, exciting, and well-worth-considering observations on our moment, and on the relationships between generational change, political struggle, and constitutional opportunity.

So skip the opening chapter if you like, but I wouldn’t skip the book. In fact, I’ll be referring back to it a lot, mostly due to the middle third, its deep analysis of judicial theory in the context of regime cycles. Why did I find the middle third so compelling?

I think that the very concept of a judicial constitutional theory today is a bit tattered from advances in the empirical study of judicial behavior. The successes of both attitudinalism, and various strategic models, while limited in various ways, nevertheless do a decent job predicting and analyzing judicial voting behavior while making zero recourse to substantive theories of judicial review of any kind. When I was in graduate school in the early 2000s, I spent semesters – more than one! -- going through the paces of Learned Hand, Herbert Weschler, James Bradley Thayer, John Hart Ely, Ronald Dworkin, and the rest of the team. The impossibility of using this literature to meaningfully assess the Supreme Court has reduced the time I spend on this curriculum with my own graduate students to three weeks, tops – if that – and usually just because I want to share with students some really smart moves for thinking about power in a context of interpretive debate.

Many of us have extracted from the debates around judicial behavior a sense that legalism can be explored only as a rhetoric; or as a quality which emerges endogenously from the structural and functional needs of an institution composed as our judicial branch is; or as a system-level interpretive principle through which various regime policy needs are cogently linked—what Balkin and Levinson might call “high politics”-- rather than an independent & substantively valuable template for disciplining judicial decision-making. For a lefty like me, if parties drive judicial behavior, why read Ronald Dworkin? Just give a contribution to the Movement for Black Lives and the DSCC and be done with it. For me, this has been a sad loss, if only because the sheer brain power that constitutional judicial theory evoked, and the wonderful, deep, and satisfying architectures, are beautiful. To me.

Balkin’s work gives a new context for that intellectual legacy by contextualizing judicial constitutional theory within a context of multiple, recurrent regime cycles. In the process he generates an array of testable hypotheses, many of which could themselves generate small academic cottage industries. It’s Part II: Judicial Review in the Cycles of Constitutional Time where Balkin hits his stride.

Here is how he links each of his three cycles and judicial politics:

In new regimes: skepticism of the “old guard” on the bench conditions arguments that are resistant of judicial power.

When a party achieves dominance: as elites recognize the value of the judiciary for pursuing the party’s goals, elites come to favor judicial power.

In polarized moments: politicians support judicial review to allow for victories they can’t win through legislative institutions. Judges become a policy vanguard by default.

In depolarized politics: judicial review is useful to elites as a division of political labor, allowing politicians space to fight over other issues.

In contexts of rot: judicial majorities tend to advance oligarchy, and dominant power wants judges to help them stay in power, enrich their supporters, and shrink the electorate.

In contexts of renewal: it’s not clear what the Court’s role is, other than that – it is not at the lead.

From these three groupings Balkin delivers a careful generational reading of judicial constitutional theory in the 20th century, relating how the conditions of a regime trajectory in a context of polarization or depolarization translate into a set of intellectual agendas, ambitions, opportunities, and stresses. Balkin is an astute observer of the Court, and he did his homework with relevant political science literatures. This equips him to reads appointment and decision dynamics of the 19th and 20th century, with their various decisions to prioritize entrenchment, resistance, identity politics, ideological commitment, and more, in a way that is cogently linked to observations about managing polarization, class hierarchy, and the needs of party elites. So too is Balkin able to generate a creative array of observations on how class hierarchy; identity politics; conditions of trust and communication; and the temporal dynamics associated with intersecting cycles of political time can produce a specific intellectual context which conditions the work of judicial constitutional theory in the academy. His readings of Herbert Weschler, Alexander Bickel & John Hart Ely, Justice Frankfurter, the varieties of originalism in its numerous iterations, John Roberts, Bruce Ackerman, Randy Barnett, and more, compellingly situates them in terms of this set of dynamic orbiting developmental trajectories. And his logics allowed me to easily extend the implications of his arguments to scholars he hadn’t treated, including Ronald Dworkin, Cass Sunstein, and, although my constitutional theory isn’t judicial in its focus, myself. Understanding my own work in terms of intersecting regime, polarization, and constitutional vibrancy dynamics witnessed by a person who was young in the early 2000s . . . was a jolt.

It’s obvious that each of the theorists mentioned above is responding to the political contexts of their lives. But the depth at which Balkin shows this, and the asides, the observations and predictions that get thrown off . . . it’s wild and fun. I found it simply satisfying to watch him show how specific regime alignments in a context of polarization and depolarization create conundrums and opportunities for theorists whom I respect. I hope more scholars in political science will read this book, take up some of his diagnoses and analyses, and specify, focus, and explore them.

Finally, Part III. Having won me over with excellent observation after excellent observation, I was prepared to set aside my emotional disconnect with his optimism and consider the reforms he suggests. They’re good, very good. A larger Court, term limits, a restricted docket – I see how these reforms fit into the patterns he described and how they would support the recreation of this very flawed constitutional experiment. After the death of Ruth Bader Ginsburg, they gave me some hope. All is not lost. There is still work to do. We have good ideas on hand, they’ve been written in a book, and it’s time to work for them.

Mariah Zeisberg is Associate Professor (Political Science) at the University of Michigan. You can reach her by e-mail at

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