AVERY FRIEDMAN—Professor Mark Tushnet coined the term “Constitutional Hardball” to define a series of actions that, while legal and within the bounds of our Constitution, overthrow traditions and norms for political gain. Many unwritten customs dictate processes of our government that the Constitution is silent on. Many long-term practices, such as the size of the Supreme Court—which consists of nine Justices—are not enshrined in our Constitution. However, they shape many contours of our government where our Constitution gave us only the bones. Norms, such as civility, reciprocity, and forbearance, leave these settled practices intact—until political figures push their boundaries to score a political win. Consider this example of constitutional hardball at play: A Democratic president and Congress take office with a Republican majority on the Supreme Court. To offset the imbalance, the president appoints additional Justices. When a Republican president later returns to office, if Congress agrees he too will appoint additional seats to restore the majority. Though entirely within the bounds of our Constitution, these actions would violate taken-for-granted norms of political behavior.
Though more often followed than explained, norms pressure political actors into cooperation. Our partisan system of cyclical power shifts creates the classic prisoner’s dilemma, where each side benefits from respecting settled practices while in power to ensure similar restraint when roles reverse. This power-driven quid pro quo also drives the erosion of tradition when one side steps out of line. As seen in the Supreme Court example above, the other side will typically retaliate with similar steps—think tit-for-tat.
Our system is complex, and so are the figures within it. Today’s actors demonstrate greater discipline in their political affiliations than previously, with fewer “outlier” votes than ever before. With consistency not favoring significant political change, constitutional hardball finds itself within the heightened tensions of our two-party system. Given the pressures created by our electoral terms in the House, Senate, and Executive Branch, newly elected presidents have only one year to enact broad change and thus benefit from pushing norms to advance their agendas quickly. Taken together, these conditions foster the environment for constitutional hardball to flourish. We will soon see this unfold in real time: President Trump’s use of executive orders may invite the next Democratic president to utilize the same executive powers for political gain in response.
However, Constitutional hardball is not necessarily a problem in need of solving. It may be an indispensable part of governmental development, as our system contemplates constitutional orders to change. When customs become inconsistent with the needs of our political system, the opportunity for change arises, and political actors lead the charge by overthrowing outdated expectations with hardball behavior. They key to this evolution is that without the old order’s decay, the opportunity for displacement would not arise and thus, this relationship suggests that hardball may be a normal feature of maintaining harmony between government and society. By accepting hardball and tactically engaging in tit-for-tat, actors may actually promote stability. This strategy, however, depends on the responding party’s ability to communicate that their action was an intentional response to other’s first move. Thinking back to the court-packing scenario, the first president’s addition to the Court causes the second President’s addition to match the first.
When consistency is the goal, however, there are a several ways to manage—maybe even mitigate—constitutional hardball. One way is to constitutionalize key norms to insulate them from overthrow. For example, when FDR ran for a third term, he attempted to circumvent the respected two-term limit and likely inspired the Twenty-Second Amendment. Similarly, our founders were unable to predict the correct size of an effective Supreme Court. Now, knowing that nine is a successful number, constitutionalizing may prevent future court packing. Alternatively, civil society can create pressure around compliance through voter education. Better-informed constituents will be less tolerant of hardball tactics. Finally, actors themselves can lower the tensions of their political agendas by shying away from aggressively transformative ideas. Hardball arises when actors are sharply adversarial. By reducing the stakes, the inclination to push the limits will fade, and actors will consider the tit-for-tat approach when deciding whether to adhere to our norms. Ultimately, constitutional hardball is a key feature of political behavior and a lens into exploring transitions in longstanding elements of our constitutional order. Through its study, we can better understand what motivates political actors and how to drive—or restrain—sweeping change.
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