Finally, and more tentatively, this Essay looks to the future.
In reaction to President Trump, congressional Democrats have begun to play constitutional hardball more aggressively. Absent a fundamental political realignment, we submit that there are good structural and ideological reasons to expect the two parties to revert to the asymmetric pattern of the past twenty-five years.
Since at least the mid-1990s, Republican officeholders have been more likely than their Democratic counterparts to push the constitutional envelope, straining unwritten norms of governance or disrupting established constitutional understandings. But contrary to the apparent assumption of some legal scholars, they have not done so with the same frequency or intensity.
After defining constitutional hardball and defending this descriptive claim, this Essay offers several overlapping explanations.
Republicans and conservative Dixiecrat Democrats successfully filibustered the nomination, defeating the key cloture vote on October 1, 1968, after which Johnson withdrew the nomination.
See Attempt to Stop Fortas Debate Fails by 14-Vote Margin, CQ Almanac 1968 (1969), [
Despite the widespread belief that both parties have moved to the extremes, the movement of the Republican Party to the right accounts for most of the divergence between the two parties [since the 1970s].”). We hazard no guess here about when a post-Trump political order will arrive or exactly what shape it will take.
As we discuss below, asymmetric constitutional hardball is not simply an epiphenomenon of asymmetric polarization, although the latter is almost certainly one of the former’s causes. 1457, 1459 (2001) (noting the distinction between “the small-‘c’ constitution—the fundamental political institutions of a society, or the constitution in practice—and the document itself”). Posner, Soft Law: Lessons from Congressional Practice, 61 Stan. But our account of recent constitutional history leads us to offer one important prediction.
This might seem like a reckless prediction to make at a moment when so much is in flux. Although Tushnet allows for the possibility of judicial constitutional hardball, his account focuses on legislative and executive actors, and the most straightforward cases of hardball often occur in legislatures.
But this Essay will document a number of longer-term dynamics that seem poised to perpetuate the divide. Legislative bodies teem with rules and norms, not expressly required by constitution or statute, that govern the interactions among political blocs within the institution.