The legal scholar Mark Tushnet conjured the term “constitutional hardball” in 2004 to evoke the use of political tactics that are constitutional in word if ruthless in spirit, dedicated to shaping the institutional order in ways congenial to one side in ideological debates that are “played for keeps”:
For the past several years I have been noticing a phenomenon that seems to me new in my lifetime as a scholar of constitutional law. I call the phenomenon constitutional hardball. This Essay develops the idea that there is such a practice, that there is a sense in which it is new, and that its emergence (or re-emergence) is interesting because it signals that political actors understand that they are in a position to put in place a new set of deep institutional arrangements of a sort I call a constitutional order.l A shorthand sketch of constitutional hardball is this: it consists of political claims and practices-legislative and executive initiatives-that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings. 2 It is hardball because its practitioners see themselves as playing for keeps in a special kind of way; they believe the stakes of the political controversy their actions provoke are quite high, and that their defeat and their opponents’ victory would be a serious, perhaps permanent setback to the political positions they hold.
Tushnet offers both distant (Marbury v. Madison) and recent (2002-2003 Democratic filibusters of George Bush’s nominees) examples of constitutional hardball. The striking thing about these examples is that while they mark lasting shifts in the institutional order- establishing the principle of judicial review in the case of Marbury and making filibusters of nominees an established precedent- the precedents they establish are in some ways ideologically neutral. Judicial review could and would be used by political players utterly alien to the contestants in Marbury, and Mitch McConnell was only too delighted to filibuster Obama’s nominees a few years after the Democrats filibustered Bush’s.
Tushnet followed up this article with one of the most remarkable documents of 2016 left-liberal opinion, a blog post entitled “Abandoning Defensive Crouch Liberalism” that argues for something more like Constitutional Calvinball than constitutional hardball:
What would abandoning defensive-crouch liberalism mean? (I’ve blogged about some of these points before.)
1 A jurisprudence of “wrong the day it was decided.” Liberals should be compiling lists of cases to be overruled at the first opportunity on the ground that they were wrong the day they were decided. My own list is Bakke (for rejecting all the rationales for affirmative action that really matter), Buckley v. Valeo (for ruling out the possibility that legislatures could develop reasonable campaign finance rules promoting small-r republicanism), Casey (for the “undue burden” test), and Shelby County. (I thought about including Washington v. Davis, but my third agenda item should be enough to deal with it.) Others will have their own candidates. What matters is that overruling key cases also means that a rather large body of doctrine will have to be built from the ground up. Thinking about what that doctrine should look like is important – more important than trying to maneuver to liberal goals through the narrow paths the bad precedents seem to leave open.
2 The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.) And they had opportunities to reach a cease fire, but rejected them in favor of a scorched earth policy. The earth that was scorched, though, was their own. (No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.). For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown. (And taking a hard line seemed to work reasonably well in Germany and Japan after 1945.) I should note that LGBT activists in particular seem to have settled on the hard-line approach, while some liberal academics defend more accommodating approaches. When specific battles in the culture wars were being fought, it might have made sense to try to be accommodating after a local victory, because other related fights were going on, and a hard line might have stiffened the opposition in those fights. But the war’s over, and we won.
3 Aggressively exploit the ambiguities and loopholes in unfavorable precedents that aren’t worth overruling. Take Wal-Mart: Confine it to its unusual facts (a huge nation-wide class, a questionable theory of liability), and don’t treat it as having any generative power in other cases. Or Washington v. Davis, which said that disparate racial impact wasn’t enough to trigger strict scrutiny, but that sometimes such an impact could support an inference of impermissible motive: Play the “sometimes” for all its worth. Defensive-crouch liberalism was afraid to be aggressive about the precedents because of a fear of reversal by higher courts. That fear can now be put aside. (Judge Reinhardt’s essay on habeas corpus, in the Michigan Law Review, is an exemplary discussion of how liberals can exploit ambiguities and loopholes.)
4 Related: Remember that doctrine is a way to empower our allies and weaken theirs. Conservative decisions on class-action arbitration should be understood as part of a long-term project of defunding the left. Much of the current Court’s voting rights jurisprudence strengthens Republican efforts selectively to shrink the electorate. Similarly with campaign finance jurisprudence. I don’t mean that these doctrines are consciously designed by the justices to have those effects, but outsiders – academics and activists – should understand that that’s what they do. (Nor do I mean that the efforts always succeed – see Evenwel for a failure.)
5 Our models are Justices William Brennan and Thurgood Marshall, not David Souter or John Marshall Harlan. With some ambivalence I’d add Justice Ruth Bader Ginsburg to the list, the reluctance arising from the fact that her work as a judge has been shaped more than it should be by defensive crouch constitutionalism, particular in her sensitivity to the possibility of backlash. Still, when the votes are there, she’s been much like Brennan and Marshall (personality aside). Famously, Brennan said that he’d been around long enough to know what it was like to win, and what it was like to lose, implying that “this too shall pass,” though it’s taken a long time. (Or, channeling Sophie Tucker [or Mae West, or Beatrice Kaufman], he ‘d been a winner and a loser, and winning is better.)
6 Finally (trigger/crudeness alert), fuck Anthony Kennedy. I don’t mean that liberals should treat him with disrespect. But defensive-crouch liberalism meant not only trying to figure out arguments that would get Kennedy’s apparently crucial vote (not so crucial any more), but also trying to milk his opinions – and more generally, obviously conservative opinions – for doctrines that might be awkwardly pressed into the service of liberal goals. (Think here of how liberal constitutional scholars treated Kennedy’s [truly silly] concurring opinion in Parents Involved [“You can deal with the consequences of segregated housing patterns by locating new school construction carefully” – in districts that are closing rather than building schools], or his “views” about affirmative action, or recasting the Court’s federalism cases as actually good for liberals.) There’s a lot of liberal constitutional scholarship taking Anthony Kennedy’s “thought” and other conservative opinions as a guide to potentially liberal outcomes if only the cases are massaged properly. Stop it. (See agenda items 1 and 3 for how to treat those opinions.)
Of course all bets are off if Donald Trump becomes President. But if he does, constitutional doctrine is going to be the least of our worries.
It’s surprising to me that Tushnet, having observed by 2016 the way the norms around the filibuster he described as constitutional hardball in 2004 were immediately repurposed by his ideological enemies, is so blase about proposing a much more dramatic form of scorched earth jurisprudence, and blithely asserting that institutional norms are of no value in constraining a President Trump (he might still maintain this to be true, given the last week, but I say there is more ruin in a nation than is dreamt of in Mar-O-Lago’s philosophy.)
A bigger issue is I think raised by Tushnet’s recommendation of the “scorched earth” policy favored by LBGT activists as a model:
(No conservatives demonstrated any interest in trading off recognition of LGBT rights for “religious liberty” protections. Only now that they’ve lost the battle over LGBT rights, have they made those protections central – seeing them, I suppose, as a new front in the culture wars. But, again, they’ve already lost the war.). For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics. My own judgment is that taking a hard line (“You lost, live with it”) is better than trying to accommodate the losers, who – remember – defended, and are defending, positions that liberals regard as having no normative pull at all. Trying to be nice to the losers didn’t work well after the Civil War, nor after Brown.
The hard line that Tushnet is referring to is evidently the refusal to accommodate even “private” or religiously-based dissension from gay marriage- LGBT activists’ suits of bakers who refused to bake cakes for gay weddings, and pursuit of other businesses and individuals who expressed opposition to gay marriage. Tushnet’s daughter, the Catholic-converted writer Eve Tushnet, provided her own commentary on these debates in 2015:
1. Cooking is an art, cakes are art, compelled creation of beauty is compelled speech. I feel like the denial that cakery is/should be expressive, that food bears meaning, is somehow Gnostic and class-biased (or sexist? if your grandma could do it, it must not be art?), but maybe that’s self-parody on my part. Anyway beauty + meaning, to me, pretty clearly = art. And photography is even more obviously art, right?
2. Still… I wonder how different this debate would look if more gay people felt confident that Christians know how common discrimination, harassment, and violence are in our lives. I mean I didn’t really know this myself for a long time. I was very sheltered. The past few years, in which I’ve gotten to know lots of gay people from different backgrounds (mostly Christian, mostly celibate, it turns out this doesn’t protect you–not that any of my friends asked it to), have been eye-opening for me.
And quite often I find straight people are even more surprised than I was to hear about the frequency and sordid creativity of anti-gay acts. I hope I’m remembering this right, but at a retreat I was at, the leader asked how many of the non-straight participants had either experienced violence as a result of sexual orientation ourselves, or had close friends who had experienced this violence. And I think all of us had. (Close friends, in my case.) And the straight people were shocked. When I tell this story now, people’s eyes widen–I mean, straight people’s eyes widen.
There are all kinds of little facts like this: Most of my celibate gay Christian friends have had therapists blame their parents for their orientation (regardless of what the kid said) and insist that they must be uncomfortable in their gender. Many of them have lost or been denied jobs in Christian institutions explicitly because they’re gay/same-sex attracted, even though they upheld that institution’s sexual ethic and sought to live by it. My friends who work with homeless youth have said that kids who have been thrown out of their homes will say, “Well, my parents are Christians,” as if that’s an obvious explanation for parental rejection. We have a sharply bifurcated culture, where like Glee is on tv and Tim Cook is a gazillionaire, and yet countless kids are being harassed, berated, and thrown out of their homes for being gay.
I am not convinced most straight people know that stuff, and think it’s awful. I am definitely not convinced that most gay people trust that our heterosexual brethren know and reject that stuff. That’s some of what you’re hearing in the “slippery slope” arguments, Can they refuse to carry us in the ambulance? Can they kick our family out of the restaurant?
3. Since that Christianity Today piece about attending gay weddings, I’ve thought about what the options are for people who can’t in good conscience attend a wedding. If I had a friend who was getting married in a way I really couldn’t attend, I think I’d ask questions like, “I honestly can’t do this, as a matter of faith, but could I come to your reception?” Or I’d try to come over beforehand and bring a gift. What can you support, in another person’s life? Could you offer to babysit their kids, or ask them to babysit yours? Could you encourage them to lean on you for help in every practical way you can offer? I don’t suggest these things because I think they would “work,” as a matter of PR or even witness, but because I think they would help “conscientious objectors” become, also, servants.
As is typical in her writing, the younger Tushnet refocuses political questions onto personal moral or spiritual dilemmas, the problem of living a just life rather than winning the game of political football or hardball or Calvinball. This is not to say that either is the correct approach; some things are best approached politically and some best approached as personal matters, though we seem to have an increasingly difficult time doing the latter. Placed alongside her father’s injunctions to use the force of the state and the courts without restraint, however, it evokes the issue of how few domains we now perceive as “truly” private or given to moderation by social practice rather than by law. Mark Tushnet would argue that such moderation is inevitably or primarily a failure (“Trying to be nice to the losers didn’t work well after the Civil War, or after Brown”) and feminists draw their sharpest barbs for the contention that the domain of the household should be free of political or legal interference.
What did work after Brown? We have largely traded one kind of segregation for one or two others, and while my own life is the beneficiary of the particular form that desegregation took, it’s not clear that other forms and other legal remedies- including some that Mark Tushnet might have taken as being excessively nice to the losers- might not have been better, for some if not for all. Water under the bridge, but we are still standing on the bridge (or “The Bridge,” in David Remnick’s formulation) and watching the water go by. In her essay “Reflections on Little Rock,” Hannah Arendt tries to make sense of these distinctions between private and public discrimination and between the political and the social realms. She is not entirely successful, and the essay, which dissents from the federally enforced school desegregation of the time while arguing among other things for an immediate end to anti-miscegenation laws, is among her most controversial. But it’s worth considering, particularly- as the elder Tushnet is perhaps discovering- as the norms of interference into private domains and the habits of constitutional Calvinball are quickly taken on by our enemies as well as by our friends.
In the public realm, where nothing counts that cannot make itself seen and heard, visibility and audibility are of prime importance. To argue that they are merely exterior appearances is to beg the question. For it is precisely appearances that “appear” in public” and inner qualities, gifts of heart or mind are political only to the extent that their owner wishes to expose them’ in public, to place them in the limelight of the market place.
The American Republic is based on the equality of all citizens” and while equality before the law has become an· inalienable principle of all modern constitutional government, equality as such is of greater importance in the political life of a republic than in any other form of government. The point at stake, therefore, is not the well-being of the Negro population alone, but, at least in the long run, the survival of the RepubIic. TocqueviIIe saw over a century ago that equality of opportunity and condition, as well as equality of rights, constituted the basic “law” of American democracy.. and he predicted that the dilemmas and perplexities inherent in the principle of equality might one day become the most dangerous challenge to the American way of life. In its all.comprehensive, typically American form, equality possesses an enormous power to equalize what by nature and origin is different -and it is only due to this power that the country has been able to retain its fundamental identity against the waves of immigrants who have always flooded its shores. But the principle of equality, even in its American form, is not omnipotent; it cannot equalize natural, physical characteristics. This limit is reached only when inequalities of economic and educational condition have been ironed out, but at that juncture a danger point, well known to students of h;story, invariably emerges: the more equal people have become in every respect, and the more equality permeates the whole texture of society, the more will differences be resented, the more conspicuous will those become who are visibly and by nature unlike the others. It is therefore quite possible that the achievement of social, economic, and educational equality for the Negro may sharpen the color problem in this country instead of assuaging it…
SEGREGATION is discrimination enforced by law, and desegregation can do no more than abolish the laws enforcing discrimination: it cannot abolish discrimination and force equality upon society, but it can, and indeed must, enforce equality within the body politic. For equality not only has its origin in the body politic; its validity is clearly restricted to the political realm. Only there are we all equals. Under modern conditions, this equality has its most important embodiment in the right to vote, according to which the judgment and opinion of the most exalted citizen are on a par with the judgment and opinion of the hardly literate. Eligibility, the right to be voted into office, is also an inalienable right of every citizen; but here equality is already restricted, and though the necessity for personal distinction in an election arises out of the numerical equality, in which everybody is literally reduced to being one, it is distinction and qualities which count in the winning of votes and not sheer equality. Yet unlike other differences (for example, professional specialization, occupational qualification, or social and intellectual distinction) the political qualities needed for winning office are so closely connected with being an equal among equals, that one may say that, far from being specialties, they are precisely those distinctions to which all voters equally aspire-not necessarily as human beings, but as citizens and political beings. Thus the qualities of officials in a democracy always depend upon the qualities of the electorate. Eligibility, therefore, is a necessary corollary of the right to vote; it means that everyone is given’ the opportunity to distinguish himself in those things in which all are equals to begin with. Strictly speaking, the franchise and eligibility for office are the only political rights, and they constitute in a modern democracy the very quintessence of citizenship. In contrast to all other rights, civil or human, they cannot be granted to resident aliens. What equality is to the body politic-its innermost principle, discrimination is to society. Society is that curious, somewhat hybrid realm between the political and the private in which, since the beginning of the modern age, most men have spent the greater part of their lives. For each time we leave the protective four walls of our private homes and cross over the threshold into the public world, we enter first, not the political realm of equality, but the social sphere. We are driven into this sphere by the need to earn a living or attracted by the desire to follow our vocation or enticed by the pleasure of company, and once we have entered it, we become subject to the old adage of “like attracts like” which controls the whole realm of society in. the innumerable variety of its groups and associations.What matters here is not personal distinction but the differences by which people belong to certain groups whose very identifiability demands that they discriminate against other groups in the same domain. In American society, people group together, and therefore discriminate against each other, along lines of profession, income, and ethnic origin, while in Europe the lines run along class origin, education, and manners. From the viewpoint of the human person, none of these discriminatory practices makes sense; but then it is doubtful whether the human person as such ever appears in the social realm. At any rate, without discrimination of some sort, society would simply cease to exist and very important possibilities of free association and group formation would disappear. Mass society-which blurs lines of discrimination and levels group distinctions-is a danger to society as such, rather than to the integrity of the person~ for personal identity has its source beyond the social realm. Conformism, however, is not a characteristic of mass society alone, but of every society insofar as only those are admitted to a given social group who conform to the general traits of difference which keep the group together. The danger of conformism in this country-a danger almost as old as the Republic-is that, because of the extraordinary heterogeneity of its population, social conformism tends to become an absolute and a substitute for national homogeneity. In any event, discrimination is as indispensable a social right as equality is a political right. The question is not how to abolish discrimination, but how to keep it confined within the social sphere, where it is legitimate, and prevent its’ trespassing on the political and the personal sphere, where it is destructive.