Partisan Constitutionalism: Reconsidering the Role of Political Parties in Popular Constitutional Change

Abstract

Scholars have long understood that political parties play an important role in shaping constitutional culture over time. This occurs most obviously through judicial appointments but also by participating in the shaping of public opinion and passing legislation affecting the scope of our fundamental commitments. But recent legal challenges to the healthcare law highlight the ability of political parties to use courts to shift the scope and meaning of our policy and constitutional commitments also in the very short run, through their strategic support for high-stakes public litigation. In both the NFIB and King challenges, some number of political opponents of the healthcare law recognized in the developing legal case an opportunity to extend a fight that had been waged in the political branches (at both the state and federal level), to a new and potentially more favorable battleground. This paper seeks to identify, for the first time, the mechanisms that allow political parties to play this role. I use the healthcare challenges to show that parties, acting under certain conditions, can increase both the success and also speed at which politically-charged legal claims are dislodged from off-the-wall to being fair game for courts. In particular, I argue that this happens through four main mechanisms, each of which can be observed in two healthcare cases. Political parties have a unique ability, beyond what is available to private litigants or social movements, to initiate and support legal challenges by 1) providing the direct infrastructure for public litigation, 2) communicating salience of the challenge to courts, including by signaling the case’s importance, 3) provide a common vocabulary of constitutional meaning that mediate between the litigants, the courts, and the public, and 4) framing relevant prudential considerations that might influence judicial decisionmaking. I describe how these four connected mechanisms were used by the party apparatus — through a process I term “partisan constitutionalism” — to advance the ACA challengers’ legal claims. I show that these dynamics helped move the challengers’ arguments from being widely considered unthinkable to being open and contested questions — thus providing cover for courts to depart from settled precedent to rule in favor of the challengers. This paper seeks to show the different ways that parties can support strategic constitutional litigation — while also acknowledging that various political and institutional considerations will often prevent them from playing this role. I conclude that partisan constitutionalism has been made both more attractive and feasible by the background conditions of hyperpolarization and divided government. Rising polarization increases the incentives for political actors to “constitutionalize” political arguments and then for judicial actors to accommodate these attempts, while divided government increases the frequency of situations in which a party finds it advantageous to pursue its policy objectives through strategic litigation rather than orthodox lawmaking. These two features of our modern politics reinforce each other, helping to explain why the party-driven constitutional litigation observed in the healthcare cases is a relatively recent phenomenon — even as many of the mechanisms identified here have long been available to political parties. This dynamic threatens to fundamentally change the role of the judiciary, which increasingly will tend to function — and thus be treated by political actors — as a new institutional veto point for the political process.