It was early last year and Pete Buttigieg, still a bit player in the Democratic presidential race, was taking questions from the audience after a book event in Philadelphia. There was one about how he’d win over Trump voters and another about how he’d differentiate himself from Barack Obama. And then, a man stood up in the back and made a rather audacious ask: "Would you support a packing of the courts — to expand the Supreme Court by four members?”
The question set off a wave of nervous laughter; enlarging the court and stacking it with liberal justices is the sort of naked power grab that doesn’t come naturally to a party that fancies itself the guardian of civility.
But as the crowd tittered, Buttigieg offered a surprising reply. “I don’t think we should be laughing at it," he said. "Because in some ways, it’s no more a shattering of norms than what’s already been done to get the judiciary to where it is today.”
The comment turned into a bit of a moment for the then little-known mayor of South Bend, Ind. Lefty Twitter declared itself impressed. And the liberal news site ThinkProgress ran a piece under the headline, “One Democrat in the race seems serious about governing, and it’s not Bernie Sanders.”
The reaction spoke to a growing desire, in some corners of the party, for Democrats to play more of what scholars call “constitutional hardball,” using tactics that are technically legal, but break with decades- and even centuries-old traditions of fair play.
The idea is to match a Republican Party that has proven itself more than willing to push the bounds of acceptable behavior in recent years — most famously refusing for the better part of a year to even consider Obama nominee Merrick Garland for a vacancy on the Supreme Court, then installing President Trump’s pick, Neil Gorsuch, and building a 5-4 conservative majority.
Aaron Belkin, director of a liberal advocacy group called Take Back the Court, argues that the GOP’s strong-arm tactics have effectively created a system of one-party rule — virtually guaranteeing that the next Democratic president will fail.
The candidates, he says, can debate wealth taxes and health care expansion all they like, but it will all amount to nothing if the GOP uses the filibuster to kill progressive legislation in the Senate or a stolen court to nullify any ambitious legislation that makes its way out of Congress.
“The house is literally on fire,” he says. “And no one is talking about it.”
Belkin is among a small group of liberal activists who have been trying to make constitutional hardball a top issue in the Democratic primary; it was a Belkin associate who stood up at the Buttigieg event in Philadelphia earlier this year and asked the question about court packing. Others are pushing to end the filibuster and eliminate an Electoral College that tilts presidential elections toward smaller, generally conservative states.
The agitators have had some success. Several of the leading Democratic candidates have declared themselves “open” to these ideas. But most sound like they’re mollifying activists, rather than leading a revolt. And only Buttigieg has placed structural reform near the center of his campaign.
The Democratic establishment, it seems, is betting that it can put off a reckoning for now. And perhaps it can. But that could change if a Democrat wins the White House and runs into the sort of GOP obstruction that activists are warning about.
Then, the pressure will mount. A growing number of voters, their hopes for a post-Trump presidency dashed, will demand action.
And if the call is loud enough, Democrats will have to face a question they’ve mostly avoided until now: Can you save a democracy by taking a wrecking ball to some of its most important institutions — or do you risk smashing the whole edifice to bits?
MARK TUSHNET, A Harvard law professor, coined the phrase “constitutional hardball” in an obscure academic journal in 2004.
The increasingly aggressive use of the filibuster to block judicial nominations struck him as a noteworthy break from what had come before.
“It was conventional wisdom in political science when I was younger, that — I think this is Tip O’Neill’s line — in Congress, you get along by going along,” he told me.
But if Tushnet put his finger on an important turn in American politics, his observation didn’t get much traction until the end of the decade when Senate Majority Leader Mitch McConnell built an explicit strategy of obstruction — famously declaring that his top priority was to make Obama a one-term president.
Suddenly, the stakes seemed higher.
And while both parties had played hardball in the past, a worrisome imbalance seemed to be taking shape — with the GOP more inclined to break the unwritten rules than their Democratic rivals.
In 2018, law professors Joseph Fishkin of the University of Texas at Austin and David Pozen of Columbia confirmed that imbalance in a sprawling paper titled “Asymmetric Constitutional Hardball.”
The authors ticked through the modern GOP’s especially rich record of envelope-pushing — from former House Speaker Newt Gingrich’s effort to consolidate power in his office in the mid-1990s and dismantle other Congressional institutions, to a systematic gerrymandering initiative known as REDMAP, to the use of government shutdowns to win legislative concessions.
And they offered a nuanced analysis of why Republicans are more partial to hardball.
First, as Pozen explained in a recent interview, it’s a matter of worldview. While Democrats are committed to the idea of an active, functioning government, Republicans prefer a smaller, less intrusive state — making them more amenable to government shutdowns.
It’s also a matter of electoral incentives. Since the mid-1990s, Republican members of Congress have been more likely to face challengers from within their own party — and those challenges tend to come from the right. “That has obvious hardball implications,” Pozen says. You’re more likely to upset norms in service of the cause “if you’re worried about being seen as not extreme enough.”
Pozen says the composition of the party bases also plays an important role.
Democrats have a diverse coalition — labor, environmentalists, people of color, educated whites. And while that’s a strength, in many ways, it can make it hard to enforce the kind of party discipline required to, say, maintain a filibuster.
The Republican Party has a more homogeneous coalition. “It’s a more coherent, ‘movement’ party, rather than a diverse-coalition party,” Pozen says. “It ends up being more unified and disciplined.”
Steven Levitsky, co-author of “How Democracies Die,” adds that the homogeneity of the GOP coalition — much of it is white and Christian — has led to a sense of vulnerability that encourages “by any means necessary” tactics.
Not long ago, he says, white Christians had a clear hold on political and economic power in this country. As that hold loosens, some have felt threatened. “Many Republican voters believe that the country they grew up in is being taken away from them,” he says. “And that has pushed the Republican Party into a much more extreme position.”
Mirroring the GOP’s hardball tactics might seem like the sensible response. But Levitsky says there’s real danger in Democrats engaging in a tit-for-tat.
A professor of government at Harvard, he’s spent much of his career studying Latin America, and he’s seen what happens when one party engages in hardball and another replies in kind: It can escalate into a sort of permanent warfare that does enormous damage to the institutions at the heart of a democratic republic.
“It’s a disaster,” he says. “At best it leads to dysfunctional government and at worst — and we’ve seen this over and over again in Latin America — it leads to the collapse of democracy.”
Levitsky points to the Supreme Court. If Democrats pack it, he says, then Republicans are sure to add more seats when they regain power — and on and on until the highest court in the land has lost all of its legitimacy.
Strong institutions are “a really valuable thing,” he says. And while it’s “relatively easy to lose” them, Levitsky argues, it’s “extremely hard to reconstruct” them.
LEVITSKY MAKES A tough ask; the Republicans have been punching Democrats in the mouth for years — and for the good of the country, they’re supposed to keep taking it.
For Belkin, of Take Back the Court, that’s unacceptable.
“The Republicans have already stolen the court,” he says. “It’s much preferred to have a zig-zag — in which they steal the court, and then Democrats unsteal the court, and then they steal the court, and Democrats unsteal it — than to have unilateral surrender.”
Brian Fallon, a onetime Hillary Clinton aide who now runs a group called Demand Justice focused on pushing the courts to the left, adds that a failure to respond to GOP hardball only encourages more of the same.
“When you have one side that approaches political debates asymmetrically and is willing to play by a different set of rules, they’re going to win every time,” he says. “And they have no incentive to change their behavior until there’s a credible threat on the table that the same will be done unto them.”
He does worry about the sort of escalation that could put American democracy in a death spiral. But Fallon and some of the academics who have studied the matter see an opening for a third way — using hardball tactics to achieve what Pozen, the Columbia professor, calls “anti-hardball” or pro-democratic ends.
For instance, when Democrats next win the House, Senate, and presidency, they could threaten to pack the Supreme Court — and use that as leverage for a deal with Republican lawmakers aimed at de-politicizing the court.
Congress could impose 18-year term limits on the justices, as one popular proposal suggests, making it impossible for them to time their retirements and ensure that a president of their liking names a successor.
And if the justices’ terms ended at staggered, two-year intervals, the new system would guarantee each president regular appointments to the high court. That, in turn, would make each nomination less of a life-and-death affair.
This sort of reform could, of course, be undone by a future Congress. But a de-politicized court would probably appeal to the independents who decide elections, making it difficult for lawmakers to reverse course.
And there are other ways to use hardball tactics for anti-hardball ends.
Democrats could eliminate the filibuster, for instance, and then use their newfound power in the Senate to push through legislation that strengthens voting rights. The idea is that the ends — democracy-bolstering measures like automatic voter registration — would justify the means.
It is an odd, and uncomfortable, way to save the republic. And like any form of brinksmanship, it would come with risks.
But in a moment of brutal partisanship, it may take a bit of hardball to save us.