Exhuming Brutus: Constitutional Rot and Cyclical Calls for Court Reform.

• Author: Hollis-Brusky, Amanda
• Position: A New Hope? An Interdisciplinary Reflection on the Constitution, Politics, and Polarization in Jack Balkin's "The Cycles of Constitutional Time"

TABLE OF CONTENTS TABLE OF CONTENTS 517 I. INTRODUCTION: BRUTUS, CONSTITUTIONAL ROT AND CYCLICAL CALLS FOR COURT REFORM 518 II. RECIPE FOR CONSTITUTIONAL ROT: A PARTISAN COURT, A CAPTURED COURT, AND A MORE SUPREME COURT 520 A. Ingredients of Constitutional Rot: Political Polarization + A Partisan Court 522 B. Ingredients of Constitutional Rot: A Captured Court 527 1. Judicial Selection 530 2. Lobbying the Courts 531 3. Acting as a Vocal and Vigilant "Judicial Audience" 531 4. The Trump Administration: "In-Sourcing" Federalist Society Influence 532 C. Ingredients of Constitutional Rot: A More Supreme Court 534 III. CONCLUSION: ROT, CONSTITUTIONAL HARDBALL & CALLS FOR COURT REFORM 536 I. INTRODUCTION: BRUTUS, CONSTITUTIONAL ROT AND CYCLICAL CALLS FOR COURT REFORM

Once upon a time, in the late eighteenth and early nineteenth centuries, the phrase "judicial independence" struck fear into the hearts of many Americans, especially those associated with the Anti-Federalist movement. Robert Yates, for example, writing under the pseudonym "Brutus," wrote with horror of the proposed independence of the judiciary:

[The Constitution has] made the judges independent, in the fullest sense of the word. There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself. (1)

Brutus was not alone in sounding the alarm about the dangers of a truly independent judiciary. (2) Thomas Jefferson, in a letter to Spencer Roane in 1819, referred to the Constitution as "a mere thing of wax in the hands of the judiciary" and warned that "it should be remembered as an axiom of eternal truth in politics that whatever power in any government is independent, is absolute also." (3)

Alexander Hamilton, as persuader-in-chief of the constitutional ratification period, provided a rebuttal to these alarmist critiques of the proposed design for the federal judiciary. In an essay we now refer to as Federalist No. 78, (4) Hamilton vigorously defended the importance of judicial independence for the rule of law and for the integrity of our written Constitution. Hamilton emphasized that the judicial branch, precisely because of its structural independence, was the only branch positioned to serve as the guardian of the Constitution (5) . Constitutional rights and protections, Hamilton reasoned, would be safe - or at least safest given the alternatives - with a judiciary removed from public pressures. (6)

But there are caveats - significant ones - in Hamilton's essay; caveats that many seem to have forgotten about. The judiciary had to exercise its power in a particular way, separated from and distinct from politics and from the political branches. If the courts were ever to become simply another arm of partisan politics, Hamilton warned, the consequences for liberty and for the rule of law would be frightful to contemplate. (7) If these Hamiltonian caveats were to be realized, judicial independence would not only be threatened, it would become threatening. That is, under certain conditions, judicial independence - as Brutus, Jefferson, and the Anti-Federalists feared - would, in fact, become dangerous for and destructive to the American constitutional system.

In The Cycles of Constitutional Time, Jack Balkin argues that we are currently witnessing the very conditions that make judicial independence potentially dangerous and destructive for our system. (8) Collectively, Balkin refers to these conditions as "constitutional rot." (9) Constitutional rot is a period marked by the visible and identifiable "backsliding in democratic and republican norms and institutions" that is usually indicative of the impending death of one constitutional regime and the birth of another. (10) In the Parts that follow, using Balkin's excellent analysis as a jumping off point, I give a bit more texture to some of these drivers of our current period of constitutional rot. Specifically, I examine polarization, partisanship, court capture, and the trend of increasing judicial supremacy and the finality of Supreme Court rulings as ingredients of constitutional rot.

These dynamics help explain and contextualize the sudden resurgence of calls for court reform on the left, which I am calling the "exhumation of Brutus." This is especially true in the wake of the jarring and sudden death of Justice Ruth Bader Ginsburg and the fevered battle to fill her seat just days before the 2020 presidential election. (11)

2. RECIPE FOR CONSTITUTIONAL ROT: A PARTISAN COURT, A CAPTURED COURT, AND A MORE SUPREME COURT (12)

   In the 1830s, Alexis de Tocqueville observed something rather unique about the fledgling American democracy; namely, that "Scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question." (13) Almost two centuries later, this observation rings truer than ever. With polarization and gridlock in Congress, individuals and organized interest groups are increasingly looking to the judicial branch to carry out their policy agendas. The Supreme Court, itself intensely divided along partisan lines, has demonstrated a willingness to play a more active, hands-on role in politics. In the last decade, for example, the high court has issued divided and divisive rulings on voting rights, (14) campaign finance, (15) gun rights, (16) contraception, (17) marriage equality, (18) healthcare, (19) immigration, (20) abortion, (21) and LGBTQ discrimination, (22) just to name a few.

   As political scientists since Alexis de Tocqueville have observed, certain underlying features of our political system and culture invite lawyers and judges to play a significant role in policymaking in the United States. These features include a mismatch between our inherited political institutions, our political culture, and a politically selected, independent federal judiciary with the power of judicial review.

   That our political institutions reflect a profound distrust and skepticism of concentrated power has been an implicit feature of our political culture. As James Madison famously wrote in Federalist No. 51: "In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself." (23) Dividing and fragmenting power through federalism and the separation of powers, our Madisonian system of government was designed to reign in and prevent an overly active or energetic government. (24) On the other hand, in tension with these inherited political and constitutional structures, we have a political culture that increasingly seeks out and demands "total justice" (25) - that is, a set of attitudes that "expects and demands comprehensive governmental protections from serious harm, injustice and environmental dangers." (26) In short, Americans increasingly want the government to protect them from harm - to ensure their airplanes and vehicles are safe, their food and water are not poisoned, and their toys are not harmful to children (27) - but the fragmented political institutions we have inherited on top of our lingering skepticism of "Big Government" make courts, not legislatures or bureaucracies, a much more appealing option for satisfying these demands.

   Thomas Burke, building on the work of Robert A. Kagan, explains how and why this mismatch between our political structures and our political culture invites and encourages policymaking through litigation and courts:

   First, courts offer activists a way to address social problems without seeming to augment the power of the state. . . Second, [policymaking through litigation] offer[s] a means of overcoming the barriers to activist government posed by the structures of the Constitution. . . activists [can] surmount the fragmented, decentralized structure of American government, which, (as its creators intended and James Madison famously boasted) makes activist government difficult. (28)

   An independent and politically selected judiciary makes litigation even more attractive to policy entrepreneurs; especially to those on the losing end of the political process. Political losers and political minorities turn to the independent judiciary (that is, unelected and unaccountable) in the hopes of persuading judges of claims that fail to command a majority in the legislature.

   Because federal courts have the power of judicial review, interest groups and policy entrepreneurs routinely ask them to strike down federal and state statutes, or to overturn the rulings of administrative agencies. Additionally, the decentralized structure of the American judiciary actively encourages forum shopping; that is, well-resourced policy entrepreneurs testing their claims in multiple courts in the hopes of finding a sympathetic judge who is willing to creatively interpret existing statutory or constitutional language to advance their policy agenda (or to thwart the policy agenda of their political opponents). (29)

   The underlying structural and cultural features that have long invited judges and lawyers to play a role in American politics have been amplified over the past twenty years by political polarization in Congress, the rise of divided government, and alternating and uncertain party control of government. These developments in our legislative politics have further incentivized groups or movements seeking policy change to opt for a strategy of litigation over legislation, turning the Supreme Court into what I have elsewhere referred to as "an Activist's Court." (30)

   1. Ingredients of Constitutional Rot: Political Polarization + A Partisan Court (31)

      One of the primary features of constitutional...