Talk of constitutional hardball is inward the air. In the wake of Brett Kavanaugh’s confirmation to the Supreme Court, liberal commentators get got been pondering tactics such equally impeachment, jurisdiction stripping, in addition to specially “packing already out there: regularizing the alternative procedure past times providing for novel appointments every 2 years in addition to transferring justices, later they get got served xviii years, into closed to kind of senior status. The details tin last debated. But at that topographic point is fiddling doubtfulness that this approach would yield less opportunistic behavior, with other benefits. Conceivably, it could last designed inward a fashion that is widely seen to acquit with Article III’s Good Behavior Clause in addition to hence would non postulate a constitutional amendment. Were such a scheme to last implemented, the odds seem skilful that the scheme would instruct functionally entrenched inward low-cal of the high costs of transitioning away from it in addition to its probable popularity with political independents. “Court packing” would lose much of its appeal.
Does this anti-hardball solution get got whatever conduct chances of beingness adopted, though? Somewhat paradoxically, the only pathway may itself involve constitutional hardball, or at to the lowest degree the credible threat thereof. As long equally Republicans relish command of the federal government, they volition last disinclined to upset the procedural condition quo. Yet if Democrats instruct increasingly energized almost “taking back” the Supreme Court at a juncture when they seem poised to retake Congress in addition to the presidency, Republicans may instruct increasingly interested in, say, the 18-year computer program inward club to caput off a partisan ability grab. The best declaration for initiating a fighting almost courtroom packing, then, is non necessarily to lay the groundwork for packing the Supreme Court—a unsafe motion no affair what the justification. The best argument, from a systemic perspective, is that such a fighting mightiness modify the political bargaining environs in addition to increase the odds of getting to an anti-hardball solution.
The paradox generalizes to other contexts. Take national security. President Trump has been playing a lot of hardball with the word in addition to police line enforcement bureaucracies—the “Deep State”—in a fashion intended to destroy their credibility in addition to independence. Anti-hardball, inward this context, plausibly involves maintaining a theatre boundary betwixt the basic piece of work of these agencies in addition to the play of partisan politics. How tin that boundary last shored upwardly against Trump’s assaults? As Jack Goldsmith has chronicled, the president’s critics inward the word community get got been breaking diverse norms inward response, such equally past times openly criticizing the president in addition to past times leaking unusual word surveillance data inward unprecedented ways. Whether or non these responses get got been wise or worthwhile is a hard question. But inward full general terms, it seems to me that this kind of hardball is most defensible when deployed equally a constitutional countermeasure to attain a broadly appealing, anti-hardball outcome.
Voting reform raises a similar conundrum. Any time to come Congress inward which Democrats get got the ability to pack the Supreme Court is also a Congress inward which they get got the ability to enact far-reaching—and long overdue—voting rights measures, including automatic voter registration, expanded early on voting, in addition to protections against improper purges. (One irony of single-minded calls for courtroom packing is that inward closed to ways they don’t instruct inward enough, fifty-fifty equally they arguably perish likewise far inward other respects: Why fixate on adding a duad of justiceships when the entire electoral procedure could last transformed?) Voting rights reforms would serve an anti-hardball constituent insofar equally they decrease incentives or opportunities for partisan gamesmanship inward areas such equally voter identification in addition to poll closures. The difficulty, of course, is that at this 2d inward political fourth dimension most voter-turnout-enhancing proposals would advance non only “small-d” democratic values but also “big-D” Democratic interests. And so, congressional Republicans tin last expected to fighting them molar in addition to nail. Democratic majorities seeking to exceed a transformative election police line statute may sew against a welter of blocking ploys, from filibusters to hush-hush holds to denials of commission quorums, unless in addition to until they themselves resort to constitutional hardball.
One complication hither is the possibility that hardball tactics, fifty-fifty if used inward the service of anti-hardball ends, instruct less effective inward our constitutional civilization just to the extent that they are acknowledged equally such (a dependent plain Josh Chafetz in addition to I get got explored). Once a grouping has admitted that it is pursuing an extreme class of activity with an oculus toward a to a greater extent than moderate or inclusive equilibrium, the grouping may surrender closed to of the leverage that pursuit of the extreme class would otherwise get got offered. As a affair of political prudence, this possibility mightiness counsel against flaunting one’s instrumental willingness to violate norms.
Further complicating things, judicial reform in addition to voting reform cannot last solely separated, equally an “unpacked” Roberts Court could strike downwards a novel voting rights pecker on the the world of whatever number of creative constitutional theories. The unanticipated emergence of the activity/inactivity distinction inward NFIB v. Sebelius and the regulation of “equal sovereignty” with states inward Shelby County v. Holder suggests what such inventiveness mightiness aspect like. This possibility counsels inward favor of keeping judicial reform on the agenda. Still, given Congress’s broad authorisation nether the Elections Clause in addition to the awkwardness of appearing to oppose voting rights, it could examine hard for whatever time to come Supreme Court, packed or unpacked, to invalidate a comprehensive election police line statute inward whole or inward large part. Voting-reform hardball may brand feel fifty-fifty inward the absence of judicial-reform hardball.
Implicit inward this work concern human relationship is a belief that closed to amount of constitutional hardball is apt to last tolerable in addition to indeed desirable at whatever given time. Norms should not be considered sacrosanct only inward virtue of beingness norms. That said, the socially optimal amount of constitutional hardball volition typically last low, in addition to it is reasonable to assume that the U.S. today has significantly overshot the mark. While anti-hardball policies (however brought into existence) tin assist motion the political organization closer toward an optimal overall degree of hardball, that degree is unlikely to last zero.
* * *
Anti-hardball is preferable to hardball, all else equal. As a rule, legal reformers should attempt out anti-hardball solutions that align with their noun political commitments. Many examples of constitutional hardball pursue narrow partisan gain in addition to cannot plausibly last defended on good-government grounds; romanticizing ruthlessness is a large mistake.
But surely other examples confound this calculus. In a current of intense polarization in addition to congressional gridlock, closed to of the most morally in addition to democratically compelling forms of anti-hardball may last unattainable without the assist of hardball, whether equally a agency to choose both sides to the negotiating tabular array or equally a agency to force through a depoliticizing reform. One of import chore for scholars, activists, in addition to policymakers is to prepare a ameliorate agreement of these dynamics—and to tether short-term hardball tactics, when feasible, to longer-term anti-hardball strategies.
[Cross-posted at Lawfare]
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