Taking Back the Constitution: Activist Judges and the Next Age of American Law

by Mark Tushnet

Overview

How the Supreme Court’s move to the right has distorted both logic and the Constitution

What Supreme Court justices do is far more than just “calling balls and strikes.” The Court has never simply evaluated laws and arguments in light of permanent and immutable constitutional meanings. Social, moral, and yes, political ideas have always played into the justices’ impressions of how they think a case should be decided. Mark Tushnet traces the ways constitutional thought has evolved, from the liberalism of the New Deal and the Great Society to the Reagan conservatism that has been dominant since the 1980s. Looking at the current crossroads in the constitutional order, Tushnet explores the possibilities of either a Trumpian entrenchment of the most extreme ideas of the Reagan philosophy, or a dramatic and destabilizing move to the left. Wary of either outcome, he offers a passionate and informed argument for replacing judicial supremacy with popular constitutionalism—a move that would restore to the other branches of government a role in deciding constitutional questions.

Product Details

ISBN-13:	9780300245981
Publisher:	Yale University Press
Publication date:	07/14/2020
Pages:	320
Sales rank:	542,343
Product dimensions:	5.80(w) x 8.60(h) x 1.20(d)

About the Author

Mark Tushnet is William Nelson Cromwell Professor of Law at Harvard Law School. His previous books include Why the Constitution Matters and In the Balance: Law and Politics on the Roberts Court.

Table of Contents

Introduction vii

Part 1 Where We Are Now 1

1 Calling Balls and Strikes 3

2 Originalisms 19

3 Playing Politics 44

4 "We've Done Enough": The Constitutional Law of Race 66

5 The Court and Conservative Movements 79

6 Culture Wars, Yesterday and Today 99

Part 2 Where a Modern Republican Supreme Court Might Take Us 109

7 Strengthening a New Constitutional Order: Partisan Entrenchment and Fulfilling Campaign Pledges 113

8 The Business Agenda 133

9 Deconstructing the Administrative State 147

10 Possibilities Thwarted and Revived 164

11 The Weaponized First Amendment 174

Part 3 Progressive Alternatives-The Short Run 189

12 Winning Elections, Enacting Statutes 191

13 Putting Courts on the Progressive Agenda 207

14 Playing Constitutional Hardball 223

Part 4 Progressive Alternatives-The Long Run 241

15 Popular Constitutionalism Versus Judicial Supremacy 243

16 Amending the Constitution 258

Conclusion: 2020 and After 273

Appendix: Strategies of Supreme Court Decision-Making 277

Notes 283

Index 301

Editorial Reviews

Tushnet persuasively demonstrates how judges’ preexisting views influence how they decide cases. He rightly calls for a reinvigoration of the role of Congress and the public in constitutional decision-making.”—Caroline Fredrickson, author of The Democracy Fix and Under the Bus

"Readers will find Mark Tushnet's new book bracing, exhilarating, and (for some) maddening. It is controversial in the best way, providing a framework for specific arguments (like court-packing) that many readers will have encountered but perhaps not considered systematically."—Josh Chafetz, author of Congress's Constitution

 

From the Publisher