Document Type

Article

Publication Date

2019

Abstract

Talk of constitutional hardball is in the air. Ever since Brett Kavanaugh's confirmation to the Supreme Court, liberal commentators have been pondering tactics such as impeachment, jurisdiction stripping, and especially "packing the court" to a degree that would have been unthinkable a few years ago. Senate Republicans have played vigorous hardball on Supreme Court appointments in the past two Congresses, most obviously by refusing to consider Merrick Garland's nomination, and there is a strong desire among many Democrats to respond with equal or greater vigor.

Even before the Kavanaugh conflagration, the concept of constitutional hardball seemed to be passing into common usage – a sobering sign of the times. Introducing the idea in 2004, Mark Tushnet defined constitutional hardball as "political claims and practices ... that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings." Building on Tushnet, Joseph Fishkin and I have suggested that a political maneuver can amount to constitutional hardball when it violates or strains constitutional conventions for partisan ends or when it attempts to shift settled understandings of the Constitution in an unusually aggressive or self-entrenching manner.

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