Constitutional Rot Reaches the Supreme Court // Jack Balkin

Balkinization: Constitutional Rot Reaches the Supreme Court
by Jack Balkin (Yale Law School)

***Should liberals and progressives also argue for judicial restraint? As a predictive (rather than normative) matter, I expect that the tendencies of the last two decades will keep going in the same general direction.  Liberals and progressives will increasingly argue for judicial restraint, and endeavor, in Mark Tushnet's phrase, to take the constitution away from the courts.

Although I predict that this is what will happen, I believe that pushing for constitutional and political reform is more important than banging the drum for judicial restraint. I myself have never been for or against judicial power per se. The courts are a co-ordinate branch of government, like the Presidency and Congress. Am I for a strong executive or a strong Congress? It depends on the issue at hand. Do I think that courts should have a lot of power? Again, it depends on the issue.

There are good reasons to think that pushing for judicial restraint *as a general principle* will prove unrealistic. There is simply too much water under the bridge. Over the course of a hundred and fifty years, American politicians have constructed powerful federal courts, and both parties and both sides of the political spectrum will want to make use of them.  But *reform* of the courts is another matter. Now is precisely the time to push for good government reforms of the judicial system and especially the Supreme Court. Limited terms for Supreme Court Justices and instituting a regular and predictable cycle of appointments will reduce the stakes of judicial confirmations. *Increasing* the Court's workload and reducing the Court's control over its docket will inhibit political gamesmanship in the selection of cases and help the Court seem like less of a ideological and partisan institution.

Right now we are in an especially corrupt moment and the courts are unlikely to help extricate us. They may even make things worse in the short run. And they are likely to be compromised and tainted by the corruption that surrounds them. But that does not make me a Thayerian or a Holmesian. One should be guided by the nature of the times. Rather than oppose judicial review per se, one should simply not expect too much from courts, and endeavor to keep them from doing too much harm. Things will eventually change. In the meantime, it is best not to look to an institution that cannot and will not help the country.

The lesson of history seems clear enough: During a period of advanced constitutional rot and high political polarization the federal courts are unlikely to be an instrument of constitutional renewal. Renewal will have to come from political mobilization instead.