Taking Back the Constitution: Activist Judges and The Next Age of American Law by Mark Tushnet (Hardcover, 320 Pages)
The Supreme Court does not just “call balls and strikes.” It is part of a wider constitutional order, which it aids and abets in various ways. The current Supreme Court is more conservative with three recent appointments up to and including Amy Coney Barrett. The recent confirmation of a replacement for Justice Breyer did not change this ideological balance.
Mark Tushnet, a long commentator on the Supreme Court and the law in general, writes a book that explains the conservative jurisprudence of the current Supreme Court, possible further developments, and what progressives can do to respond. He argues the Supreme Court is not neutral in purpose or effect, now “actively” promoting a conservative legal order.
Prof. Tushnet ultimately supports something called “popular constitutionalism” in which the people themselves determine what the open-ended terms of the Constitution means. There is loads of reasonable interpretative discretion there and democracy warrants the people decide. This can include means for the people to say how they would amend the document.
Taking Back the Constitution is a populist call for action as much as it is a description of the current constitutional order and a prediction of what might come. It is a challenging critique, including for liberals who might be more sympathetic to what the author deems “judicial supremacy.” The book both informs and offers much food for thought and debate.
Mark Tushnet argues that the federal courts, including the Supreme Court, is but part of a wider “constitutional order,” which is currently conservative-leaning. The future here is in flux and popular-based pressure can greatly affect what happens. He offers some possibilities from a progressive point of view, after summarizing the current judicial constitutional order.
Should I Read It?
Mark Tushnet argues that the Supreme Court furthers a Republican agenda, spells out some examples, and then offers some progressive responses. One response, however, is more populist, a popular constitutionalism that challenges a strong view of judicial review.
The reader should be aware of the author’s philosophy (or biases, your mileage might vary) when deciding to read this book. If you are supportive, are open to reading another point of view, and/or disagree but want to see his viewpoint, you might enjoy this book.
The reader who is generally familiar with current conservative court policies, including originalism, might find the opening chapters somewhat too familiar. I am familiar with the material but found the summary somewhat helpful to have in one place. I found the last couple of chapters, including creative ways to amend the Constitution less familiar and more notable.
The book covers a lot of legal arguments but should be generally understandable to the average reader though some basic understanding of the ground covered would be helpful. It would be useful for a college class though you do not have to be in college to understand it.
The book has no illustrations, charts, or photographs. Those generally interested in the Supreme Court and current politics might be the best audience.
The United States has undergone cycles of “constitutional orders,” which have involved specific institutions, ideologies, and policies. Things move on over time, including a period of flux as an opening for change is present, ultimately leaving a sort of “residue” that lingers on.
Since the 1930s, there have been two constitutional orders [liberal and conservative], which involve all branches of government. This book focuses on the importance of the courts, but argues that non-judicial means can be used to advance the constitutional order as well.
We are in a key moment of possibility for change, more so before the appointment of Justice Amy Coney-Barrett shortly after this book was written. The book supports a progressive approach, but a firm conservative future going in various new directions is also possible.
Part I: Where We Are Now
The Supreme Court has been conservative-leaning for some time, more so with recent confirmations. This section was written before the confirmation of Amy Coney Barrett made it 6-3. This section summarizes various aspects of the current conservative constitutional order.
1: Calling Balls and Strikes
During his confirmation hearings, Chief Justice John Roberts made an (in)famous metaphor comparing judging to umpiring. The idea is that judges merely apply the rules, and do not make them. Any baseball fan was only somewhat reassured, knowing umpires have discretion.
[I later found that James Madison himself used a form of this metaphor in the 1780s, arguing the national government itself can serve as a “disinterested and dispassionate umpire” in disputes among the states. As here, it still would have individual discretion.]
Judges are influenced by various factors: personal hunches, different ways of interpreting the law, personal experiences, and caring about how certain groups respond. And, often they have a “hunch” on the result first, and they find a way to defend it with legal argument.
Conservatives use textualism and originalism, two means of legal interpretation, allegedly as a means to restrain judicial discretion. Tushnet argues they are more “shibboleths” of legitimacy.
Originalism is a general philosophy, the specifics as diverse as sects of Christianity at this point, that in some form appeal to what the original meaning of the text was. There are various problems here, which can be found in more detail elsewhere (for example, Originalism as Faith).
Simply put, the original meaning is greatly disputed, and there are a lot of ways to use it to get to diverse viewpoints. The same is true regarding textualism, which is an argument that the important thing is the words of a legal document. A basic approach here is use of textual interpretation rules, which are legion, conflicting, and can lead one to opposite conclusions.
Arguments that originalism and textualism are merely “the law” and are necessary and in practice do restrain judges much in practice should not really to be taken very seriously.
3: Playing Politics
Various Supreme Court decisions in recent years favored Republicans (“the home team”) over Democrats. Tushnet does not argue that the justices purposely were merely deciding things to benefit one party. But, that is the net effect: they advanced a conservative constitutional order, and did so in ways that were not compelled (at times the opinions seem rather weak) by constitutional text or the law in general.
A central example here was Citizens United, an ideologically closely divided opinion (5-4), which limited the power of Congress to regulate corporate spending. Voting rights were repeatedly interpreted narrowly. Partisan gerrymandering was deemed a “political question” not for federal court review, which in practice benefits Republicans.
And, class action lawsuits (generally helping Democratic-leaning groups) were restricted in various ways. Other examples include cases hurting unions and favoring arbitration.
4: “We’ve done enough”: The Constitutional Law of Race
Liberals and conservatives have strongly disagreed on the proper way to address race. One early Roberts Court example here was a case involving affirmative action in school placement. Justice Breyer, usually a mild-mannered sort, felt compelled to read his dissent from the bench.
The Roberts Court was very skeptical about the use of race-based affirmative action programs though never completely denied their legitimacy. Criminal justice matters also had a race component, including a broad use of “qualified immunity,” which involves protecting police from even monetary damage lawsuits if their wrongful actions do not clearly violate the law.
Conservatives often have a view that “we’ve done enough” and pushed back against claims of discrimination. This is a major change of the previous liberal/Warren Court approach.
5: The Court and Conservative Movements
The conservative movement has been particularly concerned about certain things that have become constitutionalized. Not mere policy; “constitutionally compelled.”
A primary example is gun rights and the push to use the Second Amendment to defend them.
The Christian Right also has used the Free Speech Clause to support a form of “equal time” for religious speech. When a conservative justice, Antonin Scalia, held that neutral laws do not have religious exemptions, a federal law was passed to protect them. And, there was a push to allow more officially sponsored endorsements of religion, such as Ten Commandments displays.
6: Culture Wars, Yesterday and Today
Three early culture wars are addressed here: political correctness and campus free speech (Republicans basically won the legal battles, lost the cultural battle), gay rights (Republicans lost both, though the legal battle is still somewhat in flux at least in part), and abortion (Republicans did best here, though the future remains unclear).
[The Supreme Court has overruled Roe v. Wade, did so as I worked on this review, so “unclear” is perhaps something of an understatement.]
Conservatives today continue these culture wars in ways Tushnet deem “skirmishes” that mostly favor progressives. Conservatives complain about the lack of “free speech” on college campuses, but do not get much satisfaction. It basically is just a talking point for them.
They battle over what bathrooms transgender students should use, but LGBT battles are mostly being won by liberals. And, there are religious liberty debates over such things as the right to sell wedding cakes to gay couples. (I think the current situation is less liberal positive.)
Part Two: Where A Modern Republican Supreme Court Might Take Us
The Supreme Court, especially with the retirement of “swing” Justice Anthony Kennedy, is much more likely to rule in a way favoring the conservative constitutional order. The death of Justice Ruth Bader Ginsburg and replacement with a conservative (after this book was written) only strengthened this situation.
The more conservative Court can flex its muscles in various ways. Also, a more firm conservative (Republican results friendly) Court can also have a major clash with other political forces, if progressives (state or federal) implement liberal policies.
7: Strengthening a New Constitutional Order: Partisan Entrenchment and Fulfilling Campaign Pledges
The Supreme Court has held that partisan gerrymandering (districting that favors one party) is not the concern of the federal courts. A more conservative Supreme Court can go further, such as holding independent redistricting commissions are constitutionally illegitimate.
Conservative courts have been a major political movement, including reports that 1 in 3 people voted for Trump in 2016 in part because of concern about judicial nominations.
Partisans expect results here. More conservative results can be had with abortion (overturning Roe v. Wade), guns (stronger limits on gun regulations), and religious liberty (more acceptance of government funding of religious institutions). This helps conservative-leaning political institutions, just as the New Deal/Great Society liberal order helped the opposite numbers.
[Those three things happened in Supreme Court opinions handed down in June 2022 alone.]
8: The Business Agenda
Conservative courts can help businesses in various ways. It can make it harder for groups to have access (standing) to the courts to get protection from various federal regulations.
Conservatives can also make it harder to pass regulations at all, including holding state regulations clash with federal rules (federal law is supreme). Sometimes, small business particularly will be the concern of litigation battles.
Tushnet argues that there are various clashing aspects of litigation here, so it is unclear how firm the victories of conservatives will be in this area.
9: Deconstructing the Administrative State
A major development of the modern post-New Deal world is the creation of a broad administrative state, filled with an alphabet soup of agencies, creating a range of rules and regulations outside of the normal legislative process.
A major legal principle here is so-called “Chevron deference,” which gives agencies broad discretion in applying complex regulations. The law requires complex, often quite technical rules, and agencies are allowed to hand down rules as long as they are basically reasonable.
Conservatives can greatly limit agency deference, especially when it is seen as going further than the underlying law justifies, or agencies act in so-called arbitrary ways. This can greatly handcuff liberal agency action and yes the judicial results are likely not to be neutral.
10: Possibilities Thwarted and Revived
Conservatives have been upset that the Supreme Court has not gone “far enough” on certain issues. The future here is unclear. Three issues are covered here.
The Supreme Court significantly reduced the number of executions, finding a range of constitutional problems and opening up a range of means of delay. Conservatives pushed back, but did not completely turn the tide. Likewise, conservative usage of the Takings Clause (property rights) and federalism principles only went so far in a conservative direction.
11: The Weaponized First Amendment
Free speech has traditionally been used to protect political debate.
The “weaponized” First Amendment (a negative term significantly flagged by Justice Elena Kagan) is used to advance conservative economic ends. For instance, against fees allowed to be applied by unions or against limits on the sale of information for commercial purposes.
Weaponizing basically “piggybacks” on the positive vibes of what is obviously protected (political speech), but results in problems in application since everything somewhat speech related is not going to be free from regulation. Cigarette packaging has mandatory labels, for instance.
The rules here have gotten to be complex and at times rather confusing. And, there is an opening for various conservative-leaning results.
Part Three: Progressive Alternatives – The Short Run
This section offers various possible progressive strategies for political branches as well as what the conservative Supreme Court might do about them.
12: Winning Elections, Enacting Statutes
A basic thing, which was promoted back in the day by liberal Justice William Brennan during the beginning of the modern-day conservative movement, is the use of state courts. State courts, for instance, have struck down partisan gerrymanders (this can hurt Democrats too, as seen by a ruling of the New York Court of Appeals in 2022, after this book was published).
Progressives can also use conservative methods for liberal ends. Originalism has long been used in this way, such as appeals to Madison and Jefferson for separation of church and state. Federalism can also protect liberal-leaning state policies.
There can be Supreme Court pushback, including arguing federal policy “preempts” state policies or that “you are doing originalism wrong.” Therefore, it is important for progressives to carefully act, including by separating more at-risk policies (e.g., by severability).
13: Putting Courts on the Progressive Agenda
A major thing, which the Biden Administration has taken some advantage of, is to carefully use judicial nominations to fill seats with judges that will promote a progressive ideology.
If possible, more slots can be opened up by court expansion, including the Supreme Court, and by use of term limits. Term limits are more popular than “packing” the Supreme Court, but as a constitutional matter, they are harder to defend.
Liberals also have to deal with a cost/benefit analysis regarding promoting the legitimacy of the courts. Liberals argue that courts are necessary, for instance, to protect at-risk groups such as criminal defendants. But, if courts are going to be very conservative, including handing down very conservative decisions (such as against abortion rights), criticism is more sensible.
14: Playing Constitutional Hardball
Constitution hardball regards using techniques that are left open by the text of the Constitution, but have long been deemed inappropriate as a matter of norms.
For instance, many deemed blocking a hearing of Merrick Garland to replace Justice Scalia, allowing the winner of the 2016 election to fill the vacancy with a conservative as illegitimate. Others pointed out that the Constitution does not specifically disallow it.
This is a form of “hardball.” Norms have various benefits such as attempting to have wide support for policies. But, hardening partisan lines have weaponized certain norms (such as the filibuster) to block progressive results, even when there is strong support for a policy.
And, both sides do not respect the norms by equal measure. Unilateral disarmament is dubious.
Part Four: Progressive Alternatives – The Long Run
Some progressives are rather pessimistic about the future. This section offers some chances.
15: Popular Constitutionalism versus Judicial Supremacy
Mark Tushnet has long been a critic of the power of the courts to set constitutional doctrine. He is concerned about “judicial supremacy,” which in his view wrongly expands judicial review.
Judicial decisions apply to a specific case, but the appropriate reach of the principle decided upon is open to debate. And, the liberal benefits to strong judges have been at best mixed, especially if you take out the Warren Court.
He promotes “popular constitutionalism,” which gives the people themselves through political institutions a broad power to set forth constitutional law. Broad-based popular support, especially for extended periods of time, would have general legitimacy unless the Constitution clearly bars something. This includes “super-statutes” such as Medicaid or Social Security.
The chapter does not go in much detail on how to put this into action since basically at some point you will be at war with the courts. And, at times, it will have conservative results (the right to a firearm arose from a popular based sentiment). But, Tushnet asks us to look at the alternative (a conservative Supreme Court) and the basic democratic values involved.
16: Amending the Constitution
The formal methods of amending the Constitution is very cumbersome, multiple supermajorities involved. A method never used – state conventions – have various problematic elements, including the possibility of special interest capture.
Tushnet offers various possible “outside the box” methods. Internet town meetings, polling, and crowd sourced constitutional drafting can provide a form of popular constitutionalism. And, if government bodies start to recognize the results, they can have the force of law.
There are also possibilities for creative applications of current constitutional rules such as an equal protection argument against equal representation of the Senate. Pressures to have a constitutional convention (seens as a radical move), can help more “limited” changes.
Conclusion : 2020 and After
The book ends in part agnostic about what would happen, especially since it was written before the results of the 2020 election. But, it suggests we look at things in a broad way, including changing existing norms, and thinking big. Major change might be realistic long term.
Appendix. Strategies of Supreme Court Decision-Making.
This section largely discusses the strategies used when justices choose what cases to decide. Starting in the 1920s, and more so today, the Supreme Court had a large amount of control over what cases to decide. They often take cases for strategic reasons such as to promote a certain result, but this is something of a reasoned guess exercise.
Points to Ponder
Justice Stephen Breyer released (a much criticized) lecture shortly before he announced his retirement. The Authority of the Court and the Peril of Politics defends the Supreme Court and the importance of judicial review in particular. How would you use Tushnet’s book and popular constitutionalism to reply to Breyer’s arguments?
Mark Tushnet does not suggest each justice is merely a “politician in robes,” but does argue a conservative-controlled Court in large part advances a de facto Republican platform.
There are some limits such as that justices might have been appointed from a previous era, and recent partisan positions develop over time. What other limits are there? How much do they matter? Is one fellow professor right to argue it is not really “a court” at all?
Mark Tushnet clerked for Justice Thurgood Marshall during the term of Roe v. Wade (1973), showing how long he has been teaching and writing on legal issues. He is currently a law professor at Harvard Law School.
He has written many books, including regarding the Second Amendment (recommended!), Thurgood Marshall, a contribution to a book on “What Roe v. Wade Should Have Said,” and many more than the two cited in the book’s author blurb (Why the Constitution Matters and In Balance: Law and Politics on the Roberts Court).
Is Taking Back the Constitution a Reliable Source?
The author is on one level clearly an expert on the subject at hand.
He is a long-term law professor with expertise on both constitutional law and the inside workings of the Supreme Court. The book is not an in-depth research effort, but does have sixteen pages of endnotes (perhaps that is telling given all the issues covered).
The book covers standard ground, from a progressive vantage point. This makes it have a point of view, so he is not a neutral source. But, Tushnet would tell you that makes him merely an honest actor here. And, overall, I think he does provide an accurate take.
Some of his conclusions, such as the current state of affairs for LGBT people, might be mistaken. The separation of opinion and fact can be a bit hazy there. And, opinion is more subjective anyways.
On the whole, I would say this is a reliable source, though fair warning, I come at this from a progressive point of view. Some other discussions: a liberal-leaning symposium, including an entry by Mark Tushnet. A somewhat more critical take.