Published by The Lawfare Institute
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Talk of constitutional hardball is in the air. In the wake of Brett Kavanaugh’s confirmation to the Supreme Court, liberal commentators have been pondering tactics such as impeachment, jurisdiction stripping, and especially “packing the court” to a degree that would have been unthinkable a few years ago. Senate Republicans have played vigorous hardball on Supreme Court appointments in the past two Congresses, most obviously by refusing to consider Merrick Garland’s nomination, and there is a strong desire among many Democrats to respond with equal or greater vigor.
Even before the Kavanaugh conflagration, the concept of constitutional hardball seemed to be passing into common usage—a sobering sign of the times. Introducing the idea in 2004, Mark Tushnet defined constitutional hardball as “political claims and practices ... 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.” Building on Tushnet, Joey Fishkin and I have suggested that a political maneuver can amount to constitutional hardball when it violates or strains constitutional conventions for partisan ends or when it attempts to shift settled understandings of the Constitution in an unusually aggressive or self-entrenching manner.
The concept of anti-hardball is less familiar. I am just beginning to think it through myself. As a first cut, we might define anti-hardball measures as those that reduce the likelihood of constitutional hardball being played by either side. Hardball tactics invite retaliation and escalation; they raise the stakes of partisan conflict. Anti-hardball policies, in contrast, forestall or foreclose tit-for-tat cycles and lower the temperature of political disputes.
Consider partisan gerrymandering. Bold gerrymandering tactics may qualify as constitutional hardball, as when Republican representatives in Colorado, Georgia, and Texas passed redistricting plans in the mid-2000s, notwithstanding a norm that redistricting is done only at the beginning of a decade. The anti-hardball solution? Take away the power to draw districts from elected legislators and turn it over to a politically neutral body. Most of the world follows this approach. And in Arizona State Legislature v. Arizona Independent Redistricting Commission, the Supreme Court clarified that voters may use ballot initiatives to force their states to rely on independent commissions for federal congressional districts as well as state legislative districts. (This ruling is most helpful in the 18 states that allow voters to amend the constitution by popular vote, without any legislative or gubernatorial involvement.) The anti-hardball alternative to partisan gerrymandering is sitting in plain sight.
Another way to think about anti-hardball is as the set of “good-government” rules that both sides would prefer to adopt, if they had to write the rules under a veil of ignorance. I suspect that most politically engaged people, asked to create a redistricting regime without knowing anything about the partisan composition of the legislature in question, would opt for a commission model. Republican and Democratic officeholders each sacrifice something when doing anti-hardball—they limit their own ability to game the system—but they, their successors, and the general public ultimately stand to benefit from the enhanced stability and legitimacy that mutual disarmament may afford.
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Now let’s return to the Supreme Court confirmation wars. Here, too, a simple anti-hardball solution is already out there: regularizing the selection process by providing for new appointments every two years and transferring justices, after they have served 18 years, into some sort of senior status. The details can be debated. But there is little doubt that this approach would yield less opportunistic behavior, among other benefits. Conceivably, it could be designed in a manner that is widely seen to comport with Article III’s Good Behavior Clause and therefore would not require a constitutional amendment. Were such a scheme to be implemented, the odds seem good that the scheme would become functionally entrenched in light of the high costs of transitioning away from it and its likely popularity with political independents. “Court packing” would lose much of its appeal.
Does this anti-hardball solution have any chance of being adopted, though? Somewhat paradoxically, the only pathway may itself involve constitutional hardball, or at least the credible threat thereof. As long as Republicans enjoy control of the federal government, they will be disinclined to upset the procedural status quo. Yet if Democrats become increasingly energized about “taking back” the Supreme Court at a juncture when they seem poised to retake Congress and the presidency, Republicans may become increasingly interested in, say, the 18-year plan in order to head off a partisan power grab. The best argument for initiating a debate about court packing, then, is not necessarily to lay the groundwork for packing the Supreme Court—a dangerous move no matter what the justification. The best argument, from a systemic perspective, is that such a debate might alter the political bargaining environment and 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 intelligence and law enforcement bureaucracies—the “Deep State”—in a manner intended to destroy their credibility and independence. Anti-hardball, in this context, plausibly involves maintaining a firm boundary between the basic work of these agencies and the play of partisan politics. How can that boundary be shored up against Trump’s assaults? As Jack Goldsmith has chronicled, the president’s critics in the intelligence community have been breaking various norms in response, such as by openly criticizing the president and by leaking foreign intelligence surveillance information in unprecedented ways. Whether or not these responses have been wise or worthwhile is a difficult question. But in general terms, it seems to me that this sort of hardball is most defensible when deployed as a constitutional countermeasure to achieve a broadly appealing, anti-hardball outcome.
Voting reform raises a similar conundrum. Any future Congress in which Democrats have the power to pack the Supreme Court is also a Congress in which they have the power to enact far-reaching—and long overdue—voting rights measures, including automatic voter registration, expanded early voting, and protections against improper purges. (One irony of single-minded calls for court packing is that in some ways they don’t go far enough, even as they arguably go too far in other respects: Why fixate on adding a couple of justiceships when the entire electoral process could be transformed?) Voting rights reforms would serve an anti-hardball function insofar as they decrease incentives or opportunities for partisan gamesmanship in areas such as voter identification and poll closures. The difficulty, of course, is that at this moment in political time most voter-turnout-enhancing proposals would advance not only “small-d” democratic values but also “big-D” Democratic interests. And so, congressional Republicans can be expected to fight them tooth and nail. Democratic majorities seeking to pass a transformative election law statute may run up against a welter of blocking ploys, from filibusters to secret holds to denials of committee quorums, unless and until they themselves resort to constitutional hardball.
One complication here is the possibility that hardball tactics, even if used in the service of anti-hardball ends, become less effective in our constitutional culture precisely to the extent that they are acknowledged as such (a subject Josh Chafetz and I have explored). Once a group has admitted that it is pursuing an extreme course of action with an eye toward a more moderate or inclusive equilibrium, the group may give up some of the leverage that pursuit of the extreme course would otherwise have offered. As a matter of political prudence, this possibility might counsel against flaunting one’s instrumental willingness to violate norms.
Further complicating things, judicial reform and voting reform cannot be entirely separated, as an “unpacked” Roberts Court could strike down a new voting rights bill on the basis of any number of creative constitutional theories. The unanticipated emergence of the activity/inactivity distinction in NFIB v. Sebelius and the principle of “equal sovereignty” among states in Shelby County v. Holder suggests what such creativity might look like. This possibility counsels in favor of keeping judicial reform on the agenda. Still, given Congress’s broad authority under the Elections Clause and the awkwardness of appearing to oppose voting rights, it could prove difficult for any future Supreme Court, packed or unpacked, to invalidate a comprehensive election law statute in whole or in large part. Voting-reform hardball may make sense even in the absence of judicial-reform hardball.
Implicit in this account is a belief that some amount of constitutional hardball is apt to be tolerable and indeed desirable at any given time. Norms should not be considered sacrosanct simply in virtue of being norms. That said, the socially optimal amount of constitutional hardball will typically be low, and it is reasonable to assume that the United States today has significantly overshot the mark. While anti-hardball policies (however brought into existence) can help move the political system closer toward an optimal overall level of hardball, that level is unlikely to be zero.
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Anti-hardball is preferable to hardball, all else equal. As a rule, legal reformers should seek out anti-hardball solutions that align with their substantive political commitments. Many examples of constitutional hardball pursue narrow partisan gain and cannot plausibly be defended on good-government grounds; romanticizing ruthlessness is a big mistake.
But certain other examples confound this calculus. In a period of intense polarization and congressional gridlock, some of the most morally and democratically compelling forms of anti-hardball may be unattainable without the aid of hardball, whether as a means to bring both sides to the negotiating table or as a means to push through a depoliticizing reform. One important task for scholars, activists, and policymakers is to develop a better understanding of these dynamics—and to tether short-term hardball tactics, when feasible, to longer-term anti-hardball strategies.