Book Review: Parties, Politics, and the Constitution: A Review of Tushnet’s Why the Constitution Matters
Why the Constitution Matters. By Mark Tushnet. Yale University Press. 2010. Pp. 187. $25.00.
In his latest book Why the Constitution Matters, Mark Tushnet (William Nelson Cromwell Professor of Law, Harvard University) argues that the Constitution matters not because it enshrines certain “fundamental rights” enforced by the Supreme Court against majoritarian interference, but rather because the document creates political institutions that shape both the content of constitutional law (including fundamental rights) and how those rights get enforced. As he writes in the Introduction, “the Constitution matters because political parties matter, and the Constitution has some influence on the way parties operate” (p. 13). Hermetically separating law and politics is not only impossible, Tushnet argues, it is normatively undesirable.
Much of Chapter 1 discusses the ways that our Constitution’s structure made possible, then entrenched, the contemporary two-party system. Separation of powers, for example, created the possibility of divided government. Because structural features like separation of powers and federalism impact both party organization and whether government is divided, both are ultimately important to “constitutional law,” broadly denominated. (There is an irony, of course, in this: the Constitution contains no mention of parties and the Framers in fact tried to forestall their creation through these very structural mechanisms.) As time went by, Tushnet argues, highly localized parties that were really coalitions began to develop more or less coherent ideologies. For presidents, this coherence means that unified government offers the President tremendous opportunity to achieve policy goals, while divided government (and term limits) can frustrate presidential ambitions. This is a relatively new phenomenon; historically, when parties were coalitions, we usually had “essentially divided government,” with the President having to work with ideologically-compatible members of both parties (p. 40).
Tushnet is largely silent about constitutional law (as opposed to constitutional structure) until the end of Chapter 1, when he speculates that the Supreme Court’s application of the First Amendment to campaign finance reforms might have had some meaningful effect on these political developments. Ultimately, he’s skeptical. In the absence of the Court’s decisions, he argues, we’d probably have ended up at about the same place. As he argues in Chapter 2, the Court “interprets the Constitution the way it does because it too is both a part and the result of our political system” (p. 91). He continues: “Put politicians in charge of campaign finance and they’ll enact laws that reinforce the existing structure of politics. Put judges in charge and they’ll interpret the Constitution to—aha!—reinforce the existing structure of politics” (p. 92).
Thus, the message of Tushnet’s first chapter is that the Constitution matters because it creates a governmental structure that has incubated a particular two-party political culture. This political culture, in turn, influences the Constitution’s interpretation, not least because the interpreter-in-chief of that Constitution—the Supreme Court—“is both a part and the result of our political system. . . . [W]e can expect the Court’s interpretations to reinforce the constitutional positions most consistent with those of the then-dominant political regime” (p. 91).
That last suggestion—that the Court is both a political and a legal institution—is at odds with our national mythology that surrounds the Court. It will probably strike a number of readers as downright heretical. But Tushnet presses on in Chapter 2, arguing that the Court’s politics have patterns “connected to the ideas about regimes, presidential leadership, political parties, and divided or unified government” that “help make sense . . . of the Court’s history” (p. 94).
Consider cases like Brown or Griswold. In both, Tushnet argues, the Court forced outliers to comply with national constitutional norms, thus helping politicians “do things the politicians themselves [couldn’t] do even though the politicians might [have wanted] to do them” (p. 97). Why would courts willingly assist politicians this way? Tushnet argues that it isn’t a conscious choice on the part of the Court; rather it is the end product of the judicial nomination process. “[T]he judicial selection process is political to the core,” he writes. “Presidents pick nominees to satisfy political demands on them, and senators vote to support or oppose confirmation to satisfy the sometimes different political demands they face” (p.106).
The upshot is that in the context of a particular political regime with “basic commitments to a vision of what our nation’s policies should be” president select justices who’ll uphold those concepts (pp. 116-17). And the Justices usually oblige. “When things work well,” Tushnet observes, “the justices simply interpret the Constitution as they understand it—which is how the president wanted them to understand it” (p. 118). Seen from that perspective, “justices are entirely sincere in saying they are doing no more than interpreting the Constitution and that they pay no attention to politics” (p. 118). They don’t need to, according to Tushnet, because politics is already baked into the process.
Alas, things don’t always go well. For example, a Court representing an old regime can clash with a reconstructive president (think FDR and the pre-1937 Court) or an out-of-touch Court can accelerate the decline of an already-dying regime (think the Warren Court and LBJ’s Great Society). Moreover, politicians sometimes fling thorny, coalition-dissolving problems into the Court for a judicial resolution. While sometimes peace is achieved in the short term, the Court isn’t very good at settling fundamental political disagreements, which can erupt later, sometimes with disastrous long-term consequences (think slavery and Dred Scott or abortion and Roe).
But if the Court simply represents or reflects the political culture extant when a Justice is confirmed, what explains change in the law during periods of time when Court membership is relatively stable? Tushnet considers and discards one popular explanation—that justices “grow” in office through personal experience. It is more likely, he posits, that justices’ views come as a loosely-connected package. The appointing president may be interested in only a small number of (perhaps even a single) item in that package. Most nominees have had little time or inclination to think through the myriad legal issues they might be called upon to consider. Moreover, issues change over time and “[j]udges . . . have to figure out how their old ideas apply to the new problems . . .” (p. 134). Issues may change, for example, through the work of social movements. If durable, “political elites take notice” (p. 144), including those on the Court. He concludes:
To understand how the Supreme Court matters, pay attention to what kind of president we have (reconstructive, affiliated, preemptive), whether the president is part of a constitutional regime that is resilient or declining, how long the justices on the Supreme Court have been there and who appointed them, whether the national government is divided or unified, whether (or the degree to which) our political parties are coalitions of disparate groups or are ideologically homogeneous, and whether there’s some social movement that seems important even though it hasn’t yet achieved any real electoral success. Once you do that, you’ll have as good a sense of what fundamental rights the Supreme Court is going to enforce as any scholar who specializes in studying the Constitution and the Court.
(p. 150). The added bonus is that “you won’t have to worry too much about the details of the constitutional doctrines that drive the Court’s decisions from the inside” (Id.)
Tushnet’s final chapter seems addressed to those who feel unrepresented by either political party and thus find themselves consistently “losing” in both the political and judicial arenas. In that position, “[y]ou might end up thinking that you’re losing so often because our political structure is stacked against you” (p. 155). He surveys some proposals for fundamental constitutional change put forward by Sanford Levinson and Larry Sabato, but concludes that to change the Constitution one need only become politically active—even on a very small scale—elect people who share your vision and wait for the Court (and the Constitution) to catch up (p.173).
Tushnet believes that “bringing politics to the fore will actually improve the constitutional discussions we have when we talk about a recent Supreme Court decision or consider a nomination to the Supreme Court” (p. 151). By acknowledging the role politics plays, he says, we can both demystify the Court and its role and accept that reasonable people can differ about the issues coming before the Court—that it is possible to disagree about Supreme Court decisional outcomes without assuming intellectual disability or bad faith on the part of those with whom you disagree. “My complicated description of perceiving the Court’s decisions about fundamental rights as arising out of politics,” he writes, “allows us to treat our disagreements about fundamental rights as political too” (p. 153-54).
Perhaps. But we ought carefully to consider the costs of erasing the line between law and politics, even if that line is blurred more than popular accounts would have it. If the Court is little more than a collection of politicians in black robes, then life tenure—or judicial review itself—becomes hard to defend. In fact, it seems silly to staff such a body exclusively with lawyers and judges; there is no reason to think that lawyers have any particular comparative advantage in deciding cases involving the burning politico-legal issues of the day if law is simply a handmaiden to politics.
Moreover, it is unlikely that everyone would be as charitable as Tushnet, acknowledging that one’s own preferred outcomes were as much the product of these larger political forces as the outcomes one disliked. I suspect that many would still decry the latter as the result of “judicial activism,” in contrast to the principled, law-driven decisions that reached the “right” result. Tushnet actually concedes this late in the book, writing that the evidence from his own teaching is “not that encouraging. My students will generally nod in agreement when I describe disagreements about what our fundamental rights are as reasonable—as long as I make the statements completely in the abstract” (p. 154). He laments that “I’m afraid that I haven’t figured out how to help my students appreciate why treating constitutional interpretation as a form of politics is actually good for us” (Id.). Coming from someone as smart as Mark Tushnet about students as bright as those at the Harvard Law School, this is quite an admission, and ought to serve as a warning.
Consider, too, the fact that the Court sits atop a judicial hierarchy. Lower federal courts, and state courts, too, are bound by its decisions. What are those judges to make of a Supreme Court whose decisions result not from a felt obligation to engage in a good-faith application of binding law, but instead are a complicated product of presidential ambition, regime politics, political culture, and social movements? Does such a body even merit the name “Court”? How are the Court’s decisions to be applied to future cases? How are they to guide policymakers?
Tushnet writes in the Introduction that “almost everything I say here is the conventional wisdom among scholars—even legal scholars—who study the Constitution . . .” (p. 17). I’m not so sure. If it were, then what explains justices, judges, and practicing lawyers, not to mention the scores of academics producing thousands of pages of constitutional law scholarship annually, who more or less takes the Court seriously, analyzing and critiquing its decisions as if “law”—rules, doctrines, standards—mattered? If it’s politics all the way down, then these folks are not only spending their time unprofitably, we might say that they are in the throes of a false consciousness or victims of mass delusion.
Or perhaps they’re just looking at constitutional law from something like Hart’s internal point of view. If Tushnet is right, and political influences are inescapable, then maybe we’re better off ignoring them. Instead, let’s have debates about the Court and its interpretive methodology, respect for precedent, and appropriate standards of review, leaving to the historians the larger, external explanations for the actions of its members. Embracing the politicized alternative offered by Tushnet and others might end up being self-fulfilling. The Court would likely descend to meet our low expectations. The more “political” it became, the more likely it is that the reservoir of goodwill enjoyed by the Court would evaporate and be refilled with the contempt that people express for our other political institutions.
Brannon P. Denning is a professor at Cumberland School of Law, Samford University. He wishes to thank Ben Barton and Glenn Reynolds for helpful comments.