Practice-Based Constitutional Law in an Era of Polarized Politics

• Published date: 01 July 2020
• Date: 01 July 2020

THOMAS M. COOLEY BOOK PRIZE &

SYMPOSIUM

Practice-Based Constitutional Law in an Era of

Polarized Politics

KEITH E. WHITTINGTON*

ABSTRACT

We might reasonably think that both descriptive and normative legitimacy for

a court that interprets a constitution and rules on the validity of deeply contro-

versial issues of public policy are rooted in such neutral factors as whether

judges are acting in good faith and constructing arguments using recognized

legal modalities. Unfortunately, in a highly polarized, partisan environment,

such efforts at neutral decisionmaking are likely to be dismissed by partisan

opponents, and judicial decisions are likely to be evaluated by the cruder metric

of substantive alignment with the observer’s own policy preferences. In an era

of polarized politics, even judges deliberating in good faith may come to be per-

ceived as illegitimate if they reach the “wrong” conclusions about high-prof‌ile,

contentious constitutional issues.

TABLE OF CONTENTS

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 227

I. PRACTICE-BASED CONSTITUTIONAL LAW. . . . . . . . . . . . . . . . . . . . . 228

II. POLARIZED POLITICS AND PRACTICE-BASED CONSTITUTIONAL

LAW . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 232

INTRODUCTION

Judicial legitimacy is not easy to maintain. Professor Richard Fallon’s Law

and Legitimacy in the Supreme Court takes that challenge seriously. It explores

the conceptual underpinnings of the Court’s work as it interprets the law and

resolves hard constitutional disputes. The book tries not only to make sense of

what the Court does but also to offer guidance for what the Court should do. To

Fallon’s great credit, his thinking about what guidance to offer the Justices takes

* William Nelson Cromwell Professor of Politics at Princeton University and Visiting Professor at

Harvard Law School. © 2020, Keith E. Whittington.

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