Judicial Politics and Judicial Reform

In the early years of the next regime, conservative courts will face off against liberal Democratic politicians. Courts are very unlikely to be able to do much to repair constitutional rot. Constitutional renewal must come from popular mobilizations and demands for reform, including constitutional reform. Growing frustration with the courts will lead to calls for reform of the federal judiciary. Reforms should aim at lowering the stakes of judicial appointments and assisting depolarization. Court-packing proposals achieve neither goal. Three better approaches are (1) instituting regular appointments to the Supreme Court; (2) achieving the equivalent of term limits for Supreme Court justices by changing quorum rules; (3) increasing the Court’s workload (instead of limiting its jurisdiction); and (4) using sunrise provisions that take effect in the future so that partisan advantages are harder to predict. Each of these proposals can be implemented constitutionally through ordinary legislation.

How Cycles of Polarization and Depolarization Shape the Exercise of Judicial Review

The cycle of polarization and depolarization affects the political supports for judicial review. When politics is depolarized, politicians tend to let judges handle basic constitutional questions so that politicians can fight over the spoils of everyday politics. Judicial review tends to enforce the values of national political elites, especially against state and local governments. When the country is polarized, however, elite consensus evaporates. Political elites disagree about everything, so judicial review cannot do the same work. Instead, judicial review allows polarized political elites to win victories they can no longer win in the political process. As legislative politics becomes mired in polarization, the judiciary becomes an ever more important venue for achieving policy victories. This increases the urgency and bitterness of partisan fights over judicial appointments. Strong polarization encourages the parties to engage in constitutional hardball to secure ideologically aligned judges and prevent the other party from appointing judges.

Judicial Review in the Cycles of Constitutional Time

The cycles of constitutional time affect the work of the federal judiciary in multiple ways. Because of life tenure, the judiciary is a lagging indicator of the cycles of politics. Hence judicial time is often out of sync with political time. Judicial review is shaped by the strategy of partisan entrenchment: the political parties attempt to install jurists who will be ideologically sympathetic. The cycles also affect the political supports for judicial review—the reasons why politicians accept judicial review and have helped to construct the power of the federal courts over time. Politicians support judicial review and construct how judges practice it because judicial review performs important tasks and manages problems for politicians over the long run, even if they disagree with particular decisions.

Constitutional Crisis

Dysfunctional politics in the United States and Donald Trump’s presidency have caused many people to worry that the country is in the middle of a constitutional crisis. That is not the case. A constitutional crisis occurs when a constitution is about to fail at its central purpose—to keep struggles for power within the boundaries of law and the Constitution. Constitutional crises are rare in American history, and the United States is not currently in a constitutional crisis, although it is facing a series of worrisome political crises. When Americans talk about constitutional crisis they are really describing constitutional rot, which is discussed in the next chapter.

Law in the Time of Constitutional Rot

In periods of advanced constitutional rot, judicial decisions become especially polarized. Judicial majorities tend to reach decisions that increase economic inequality, shrink the electorate, and help maintain political oligarchy. Members of the dominant party want judges to help them stay in power, to support politicians’ self-entrenching behavior, to defend and protect politicians from charges of corruption, and to enrich their financial supporters. As a result, the judiciary tends to be part of the problem rather than part of the solution. Ordinarily, the US Constitution relies on the judiciary to protect democracy and republican government, and to prevent political corruption and self-entrenching behavior. But in periods of advanced constitutional rot, the Supreme Court and the federal judiciary are likely to be ineffective and may even make matters worse.

The Role of Constitutional Theory in the Cycle of Regimes

Constitutional theories such as originalism and living constitutionalism evolve to reflect the changing attitudes of partisans and legal intellectuals in political time. They also develop to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century. Because we are near the end of the Reagan regime, Democrats are invested in judicial restraint and Republicans in judicial engagement. The situation is closest to the one faced by Democrats in the 1930s. Democrats’ relative hostility to the courts will continue until Democrats once again gain control through partisan entrenchment. However, because the Trump administration has worked hard to stock the courts with as many young conservative jurists as possible, this change may take some time.

How the Rise and Fall of Regimes Affects Judicial Review

The rise and fall of regimes shapes partisan attitudes about judicial review. How people feel about judicial activism and judicial restraint depends on where they are in political time, and which party tends to control the federal courts. The parties’ positions are mirror images. Over the course of a regime the dominant party increasingly relies on judicial review to achieve its goals, while the opposition party becomes increasingly skeptical of judicial review and advocates judicial restraint—although neither party ever fully abandons using judicial review to advance its policies. As the cycle moves from the beginning of a regime to its final days, the parties—and the legal intellectuals allied with them—gradually switch positions. The party of judicial restraint becomes the party of judicial engagement, and vice-versa. The effect, however, is generational; older people may stick with their hard-won lessons about the courts, while younger generations, who have very different experiences, take contrary positions.

The Cycle of Constitutional Rot and Renewal

For the past thirty years the United States has been suffering from increasing constitutional rot. Constitutional rot is the decay of the features of a constitutional system that maintain it both as a democracy—responsive to popular will, and as a republic—devoted to the public good. The Constitution’s framers believed that all republics would eventually decay, so they designed the constitutional system so that things would bottom out before the country turned to mob rule, oligarchy, or dictatorship. They sought to buy time for democracy so that the inevitable periods of constitutional rot would be followed by periods of constitutional renewal. Constitutional rot often produces demagogues. Donald Trump is a demagogue. His rise to power was made possible because constitutional rot has been growing for a long time and is now very advanced. The good news is that political changes offer possibilities for renewal.

The Cycle of Polarization

American politics features very long cycles of polarization and depolarization between the political parties. Politics polarized around the Civil War and remained polarized until the end of the Gilded Age. Then began a long period of depolarization. Polarization started increasing once again in the middle of the twentieth century, and we are now at the peak of the current cycle. Polarization is a characteristic feature of the Reagan regime. Although Republican politicians used strategies of polarization to gain power, polarization made it increasingly difficult for them to govern, and will eventually lead to the regime’s undoing.

The Cycle of Regimes

American political history has featured a series of successive governing regimes in which political parties compete. During each regime one of the parties tends to dominate politics practically and ideologically. The regime rises and falls. We are at the end of the Reagan regime, which began in the 1980s. Stephen Skowronek’s model of presidential leadership in political time suggests that Donald Trump is probably a disjunctive president who brings the Reagan regime to a close. Politics during the last years of a regime are often confusing and dysfunctional, and this period is no exception. Trump may avoid disjunction and give the Reagan regime a second wind, like William McKinley did in 1896. Although this possibility is very real, it runs counter to long-term demographic trends. The next regime is more likely to feature the Democrats as the dominant party.