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Buffalo Law Review

Escaping Conditional Constitutionalism: Political Fear and Judicial Power in a Polarized Age

First Page

1097

Document Type

Article

Abstract

Fear of judicial power in the wrong political hands is on the rise, particularly with respect to the Supreme Court. We confront a crisis of “conditional constitutionalism”—the expectation that the United States Constitution stands for a different set of principles and requires adherence to a different set of rules depending on which party has appointed the Supreme Court majority. Conditional constitutionalism erodes the distinction between supreme law and ordinary legislation for many partisans, rendering support for the constitutional order itself conditional on the partisan composition of the Court. Fear of the Court stems largely from its inability to settle on a stable understanding of substantive due process, which has resulted in a body of contradictory or incoherent case law that can justify a broad range of outcomes and the selective treatment of precedent. This inability does not stem from the incompetence of the Court; rather, the institution lacks the legislative tools required to deal with policy cycling in this area and requires the assistance of the political branches. President Biden’s Commission on the Supreme Court of the United States recently considered several reforms, including term limits, court expansion, jurisdiction stripping, and supermajority requirements to overrule precedent. Although these proposals may have merit, they are not calculated to deal with the problem of policy cycling on the Supreme Court—and therefore cannot address the political fear that feeds into conditional constitutionalism. Two reforms that together may succeed are splitting enumerated rights from unenumerated rights and articulating justiciable standards for the Court in recognizing new liberty interests under the Constitution. Fearful ideologues and the public at large stand to benefit from a structural resolution of this crisis.

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