My previous post invoked Donald Ayer's view that to maintain public trust, the Supreme Court should not "actively undermine the ability of governments to advance public purposes as established by a fair democratic process." Yet the Republican majority on the court has done exactly that, appears impatient to do much more, and in its rush to put its stamp on the law has run roughshod over judicial and democratic principles that deserve to be respected.
Ayer's essay ("The Supreme Court Has Gone Off the Rails") calls to mind a discussion in Jan-Werner Müller's book What Is Populism? Müller pushes back against the view of populist leaders as essentially lawless, seeking to be "entirely unconstrained" in their pursuit of power. On the contrary, he argues, "populists will even write constitutions (with Venezuela and Hungary serving as the most clear-cut examples)." Their strategy is to construct "technical constitutional machinery" that places constraints on their political opponents. The populists' goal is to maintain power and, if they lose an election, to ensure that the victors will be hamstrung when trying to govern.
Strategically crafting a partisan constitution
Müller describes what Fidesz, Victor Orbán's political party, has brought about in Hungary:
The Hungarian government . . . essentially designed what a former judge on the German constitutional court, Dieter Grimm, has called an “exclusive constitution,” or what one might also term a partisan constitution: the constitution sets a number of highly specific policy preferences in stone, when debate about such preferences would have been the stuff of day-to-day political struggle in non-populist democracies. Moreover, it excluded opposition parties in a double sense: they did not take part in writing or passing the constitution, and their political goals cannot be realized in the future, since the constitution highly constrains room for policy choices. In other words, under the new regime, the constitution makers can perpetuate their power even after losing an election.
. . .
Now, none of this means that populist constitutions will always work precisely as intended. They are designed to disable pluralism, but as long as regimes hold elections with some chance of oppositions winning, pluralism will not entirely disappear. However, such populist constitutions are then likely to result in severe constitutional conflicts. . . . The point is this: Populist constitutions are designed to limit the power of nonpopulists, even when the latter form the government. Conflict then becomes inevitable. The constitution ceases to be a framework for politics and instead is treated as a purely partisan instrument to capture the polity.
The GOP's embrace of the populists' strategy
Whether or not we regard the contemporary Republican Party as populist, Republicans -- long before the Trump era -- have followed the populists' strategy described by Müller: crafting constitutional constraints and commands to favor their party and to disadvantage their political opponents. The GOP has not, of course, sought to re-write the words of the United States Constitution. Instead, the party, through capture of the courts -- and domination of the nation's highest court -- has sought to constrain opponents of the Republican agenda through wholesale reinterpretations of the constitution, creating novel constitutional rights (that advance the Republican agenda), while brushing aside well-established constitutional judgments (effectively ruling Democratic policy choices out of order).
The rulings of SCOTUS's Republican majority too often foreclose change through the political process as practiced in a democracy. Campaigns and elections (and much more) are the stuff of politics. The process ensues as the winners, determined at the ballot box, endeavor to put public policies in place to fulfill their commitments. Yet a determined 6-3 or 5-4 majority, acting with indifference to election outcomes, may short-circuit "the stuff of day-to-day political struggle" (as Müller put it), so that it is no longer possible (in Ayer's words) "to advance public purposes as established by a fair democratic process."
Fast and loose jurisprudence
Ayer reviews a sampling of decisions that have undermined the ability of government to implement policies endorsed through democratic means. These judgments have come in a rush as the Republican majority on the court has willingly trampled on conservative principles (such as judicial restraint and respect for precedent) in handing down its decisions. In recent years, partisanship and fidelity to the agenda of the Republican Party better explain the court's rulings (in the 6-3 and 5-4 decisions that divide along party lines) than any set or subset of conservative judicial principles. Based on recent experience, we can expect the Republican justices to be unconstrained -- whenever it is convenient -- by judicial restraint, stare decisis, federalism, or originalism during the 2021-22 session of the court.
The Supreme Court's Republican majority, now with three Trump justices in place, has displayed cavalier arrogance, disregard for the human consequences of its decisions, and hostility both to American voters and to the primacy of free and fair elections. This majority has waged war on the capacity of governing majorities, when represented by opponents of the Republican Party's agenda, to implement public policy choices.
The justices' assault, without altering a single word of the nation's founding document, has been savagely effective in giving us a partisan constitution.