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Taking Back the Constitution: Activist Judges and the Next Age of American Law Hardcover – July 14, 2020

by Mark Tushnet (Author)

5.0 15 ratings

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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.

Editorial Reviews

Review

“Tushnet presents a thought-provoking discussion of the power and persuasion of the U.S. Supreme Court in its current conservative iteration.”—Judy C. Janes, Law Library Journal

“Brings into focus the revivified critique of constitutional law critical constitutionalists have (re)developed. . . . Tushnet’s well developed scenarios show that the modality-based constitutional arguments available to progressives are rather limited.”—Calvin TerBeek, Law & Social Inquiry

“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

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.

Product details

ASIN ‏ : ‎ 030024598X
Publisher ‏ : ‎ Yale University Press (July 14, 2020)
Language ‏ : ‎ English
Hardcover ‏ : ‎ 320 pages
ISBN-10 ‏ : ‎ 0274757567
ISBN-13 ‏ : ‎ 978-0300245981
Item Weight ‏ : ‎ 1.12 pounds
Dimensions ‏ : ‎ 5.5 x 1.06 x 8.5 inches

Best Sellers Rank: #1,879,877 in Books (See Top 100 in Books)
- #571 in United States Judicial Branch
- #1,916 in General Constitutional Law
- #3,508 in Political Conservatism & Liberalism

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5.0 15 ratings

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Chris

Blueprint for Democrats Thinking About the Supreme Court

Reviewed in the United States on August 16, 2021

The author, a highly-cited professor of constitutional law at Harvard, presents a readable blueprint for Democrats thinking about the Supreme Court. The author is knowledgable enough about the law to resist histrionics regarding a conservative Court; as he notes, even the "pro-Republican" decisions (Citizens United, Shelby County, Janus, Rucho) only slightly tilt the playing field in favor of Republicans. Further, these pro-Republican decisions have a solid basis in legal reasoning (as do the dissenting opinions).

I deduct one star for the careless reasoning he employs in the final pages. He tells us that if the people choose to stop obeying the Constitution and instead obey a different set of rules, and the enforcers of the Constitution (police, military) refuse to punish those who stop obeying, then we have effectively "amended" the Constitution. True-- but also so obvious I wonder why it needs to be stated. Further, the author tells us that this is how the American Revolution started, but then tell us that this "extra-constitutional amendment process" can be non-violent, and points to how the Articles of Confederation was peacefully abandoned in favor of the Constitution. True-- but wasn't the American Revolution bloody? And isn't this "extra-constitutional amendment process" almost certain to result in a bloodbath in our hyper-partisan America?

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