Friday, August 7, 2020

Mark Tushnet's "Taking Back the Constitution"

Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School. His books include Why the Constitution Matters and In the Balance: Law and Politics on the Roberts Court.

Tushnet applied the “Page 99 Test” to his new book, Taking Back the Constitution: Activist Judges and the Next Age of American Law, and reported the following:
Page 99 of Taking Back the Constitution is the first page of a brief chapter on the Supreme Court’s decisions on constitutional questions associated with the culture wars, including LGBTQI rights and abortion.

The chapter’s theme is a small version of the book’s overall argument, that the best way to understand the Court’s decisions on high-profile constitutional issues is to map the issues onto our political landscape. Justices nominated by Republican presidents will generally, though not always, decide the cases as the Republican caucus in the Senate would deal with them – and similarly for justices nominated by Democratic presidents.

Most of the book applies that argument to cases the Court has decided over the past decade, and projects the argument into a future that might resemble the present (divided government), or differ from it a lot (a consolidated “Trumpist” government or an invigorated Democratic regime). Along the way the book explains how the Court is both an umpire calling balls and strikes and a thoroughly political institution – how, that is, deciding cases according to “the law” allows the justices to translate their ordinary political preferences into constitutional law.

The book concludes with a discussion of several forms of constitutional transformation, ranging from changes in the way we choose justices to the possibility of calling a new constitutional convention to revise the Constitution top-to-bottom. I favor doing so, but you’ll have to read the book to understand why, and to see how a new constitutional convention might work.
Learn more about Taking Back the Constitution at the Yale University Press website.

--Marshal Zeringue