Taking Back the Constitution: Activist Judges and the Next Age of American Law

320 Pages·2020·2.822 MB·English

by  Mark Tushnet

Taking Back the Constitution

TA K I N G B AC K T H E
C O N S T I T U T I O N
ACTIVIST JUDGES
AND THE NEXT AGE
OF AMERICAN LAW
MARK TUSHNET
New Haven and London
Published with assistance from the foundation established in memory
of James Wesley Cooper of the Class of 1865, Yale College.
Copyright © 2020 by Mark Tushnet. All rights reserved. This book
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10 9 8 7 6 5 4 3 2 1
Frontispiece: Francisco Goya, The Sleep of Reason Produces Monsters,
circa 1799 (The Metropolitan Museum of Art, gift of
M. Knoedler & Co., 1918)
Contents
Introduction vii
PART ONE
WHERE WE ARE NOW 1
1 Calling Balls and Strikes 3
2 Originalisms 19
3 Playing Politics 44
4 “We’ve Done Enough”: The Constitutional Law of Race 66
5 The Court and Conservative Movements 79
6 Culture Wars, Yesterday and Today 99
PART TWO
WHERE A MODERN REPUBLICAN SUPREME
COURT MIGHT TAKE US 109
7 Strengthening a New Constitutional Order: Partisan
Entrenchment and Fulfilling Campaign Pledges 113
8 The Business Agenda 133
9 Deconstructing the Administrative State 147
10 Possibilities Thwarted and Revived 164
11 The Weaponized First Amendment 174
PART THREE
PROGRESSIVE ALTERNATIVES—THE SHORT RUN 189
12 Winning Elections, Enacting Statutes 191
13 Putting Courts on the Progressive Agenda 207
14 Playing Constitutional Hardball 223
PART FOUR
PROGRESSIVE ALTERNATIVES—THE LONG RUN 241
15 Popular Constitutionalism Versus Judicial Supremacy 243
16 Amending the Constitution 258
Conclusion: 2020 and After 273
Appendix: Strategies of Supreme Court
Decision- Making 277
Notes 283
Index 301
Introduction
The last time the Supreme Court had a chief justice nominated
by a Democratic president was in 1953, just before Fred Vinson passed
away. The last time the Supreme Court had a majority of justices nomi-
nated by Democratic presidents was May 1969, just before Abe Fortas
resigned under pressure. There used to be Republican- nominated
justices who were only moderately conservative—Lewis F. Powell,
Harry Blackmun, Sandra Day O’Connor, David Souter, Anthony
Kennedy—whose presence on the Court slowed what we now can
see was a sustained move to the right. With the polarization of our
political parties, that move has become a march. Republicans have
shifted more quickly and substantially to the right than Democrats
have to the left.
Where has the march to the right brought us? Republican con-
trol of the Supreme Court—and intermittent control of Congress
and the presidency—has built a constitutional system animated by
conservative principles. Political scientists have shown that the United
States has gone through cycles in which a constitutional order (or
regime, or system—all terms I use interchangeably) is built by ad-
herents of a political coalition that controls the government for a de-
cade or more. These constitutional orders, which have characteristic
institutions, ideologies, and policies, decay as their political projects,
leadership, and ideas come under pressure from new realities and
persistent opposition. Each is then replaced by something quite dif-
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INTRODUCTION
ferent, though each also leaves a permanent residue with which suc-
cessors must deal.1
The United States has experienced two constitutional orders since
the 1930s and may now be entering a third. From the 1930s through
the late 1960s there was the New Deal/Great Society constitutional
order. Among its characteristic institutions were the bureaucracies of
what we came to call the administrative state; its characteristic ideol-
ogy was interest- group pluralism and associated practices of political
bargaining and compromise; its characteristic policies were civil rights
laws, Social Security, Medicaid, and the rest of the U.S. social safety
net. Its constitutional doctrine culminated in the Warren Court’s lib-
eralism and an approach to constitutional interpretation that came to
be described as “living constitutionalism.”
This order was replaced from the 1980s to the early 2000s by
a constitutional order associated with Ronald Reagan. The Reagan
order’s characteristic institutions were the old administrative bureau-
cracies, now charged with reducing their own reach through deregu-
lation; its characteristic ideology was the view that government was
the problem, not the solution; its characteristic policies were tax cuts.
The conservative constitutional order arose with the conserva-
tive critique of the Warren Court. It grew substantially with Ronald
Reagan’s presidency and developed significant intellectual backing
through the work of a cohort of conservatives in think tanks and the
legal academy, many of whom held positions in the Department of
Justice and the White House counsel’s office under Republican presi-
dents. Its approach to constitutional interpretation involved adher-
ence to original constitutional meanings, intentions, or understand-
ings. Yet like “living constitutionalism,” conservative originalisms were
mostly catchphrases rather than coherent accounts of constitutional
interpretation as actually practiced.
As constitutional orders do, the Reagan order began to decay,
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INTRODUCTION
in part through political blunders by George W. Bush. And like the
New Deal/Great Society constitutional order, the Reagan order was
not replaced immediately. We can take the dozen years between 1968,
when Lyndon Johnson’s presidency was concluding, and 1980, when
Ronald Reagan was elected, as the interregnum. Similarly perhaps
with the years between 2009, when George W. Bush left office, and
2020.
The political scientists who have written about American political
development focus on Congress and the presidency. Understanding
the role of the courts in their framework requires attention to “judicial
time” as well. Congressional and presidential elections occur at regu-
lar intervals. Membership on the Supreme Court changes irregularly
and largely unpredictably. One effect is that a Court whose compo-
sition was determined during an earlier regime or during an interreg-
num can retain significant power even as a new regime comes into
place. This book explores the effects of judicial time on changes in
our constitutional order.2
The Trump presidency shows that the conservative constitutional
order has reached the kind of inflection point that produces a new
constitutional order. As election analyst Sam Wang put it after the
2018 elections, “We’re at some kind of pivot point in U.S. history. . . .
The United States is going someplace new. I wonder where that is.”3
This book examines the possibilities. Either conservative constitu-
tional law will reconstruct itself along new lines, or it will be replaced
by a progressive alternative that is as yet unclear. Projecting the con-
servative Supreme Court decisions from the period of decay into the
future shows what we might expect under a Supreme Court domi-
nated by modern Republicans. 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 immi-
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INTRODUCTION
gration restrictions—in one scholar’s terms, small government inside
the United States and big government at the borders.4
What might the progressive alternative be, and how might it be
brought about? Progressives are still grappling with the legacy of their
political weakness under the Reagan constitutional order. It is unclear
what will emerge, but there is a possibility that the progressive alter-
native will combine a reinvigorated system of public participation in
democratic self- government with commitments to the thicker and
more social- democratic government that characterized the New Deal/
Great Society order at its height. It is, at least, the progressive alterna-
tive most clearly discernible today.
x