Many have argued that the United States’ two major political parties have experienced “asymmetric polarization” in recent decades: The Republican Party has moved significantly further to the right than the Democratic Party has moved to the left.
The practice of constitutional hardball, this Essay argues, has followed a similar—and causally related—trajectory.
on March 16, 2016, Senate Republicans refused to give the nominee a hearing.
They resolved to block anyone selected by President Obama from filling the seat. As election day approached, one prominent Republican Senator “promise[d]” that his Republican colleagues would likewise “be united against any Supreme Court nominee that Hillary Clinton, if she were president, would put up.” David A.
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.
See infra notes 101–104, 177–180 and accompanying text. Strauss, The Irrelevance of Constitutional Amendments, 114 Harv. The small-c constitution is often associated with “unwritten” norms of politics and governance. Barring a fundamental realignment in the party system, we believe the now-familiar pattern of asymmetric constitutional hardball is likely to continue for the foreseeable future: While Democrats may well become more aggressive practitioners of constitutional hardball, In January 2018, Senate Democrats took the once-unthinkable (for Democrats) step of shutting down the government in a bid to prompt legislative action on the Deferred Action for Childhood Arrivals program that the Trump Administration had announced it would end.
Yet to the dismay of their activist base, the Democrats “collapsed and accepted the Republican terms for reopening the government” within three days.
If this prediction is correct, it will have profound long-term implications both for liberal constitutional politics and for the integrity and capacity of the American constitutional system.
* Marrs Mc Lean Professor in Law, University of Texas School of Law. For valuable comments and conversations, we are grateful to Bruce Ackerman, Jack Balkin, Joseph Blocher, Curt Bradley, Jessica Bulman-Pozen, Josh Chafetz, Guy Charles, Kimberlé Crenshaw, Walter Dellinger, Ryan Doerfler, Nita Farahany, Cary Franklin, Jonah Gelbach, Jamal Greene, Adam Katz, Jeremy Kessler, Marty Lederman, Maggie Mc Kinley, Gillian Metzger, Caleb Nelson, Eric Posner, Jed Purdy, Kelsey Ruescher, David Schleicher, Peter Schuck, Neil Siegel, David Super, Eric Talley, Mark Tushnet, and workshop participants at Columbia, Duke, Harvard, and Penn law schools. Research Serv., IN10469, Supreme Court Vacancies that Arose During One Presidency and Were Filled During a Different Presidency 1 (2016).