It’s a good week to revisit “asymmetric constitutional hardball”, last discussed in TiB 126
. In the UK, Boris Johnson’s government is threatening to break international law
to “get Brexit done” (again). In the US, the death of Ruth Bader Ginsburg (superb profile here
) has reignited fierce debate about Mitch McConnell’s, err, innovative and flexible
, beliefs about the proper time for the Senate to consider judicial nominations.
Let’s take at face value the idea that norm breaking in the pursuit of desired policy outcomes really is asymmetric (I noted my skepticism last time
). How should liberals on both sides of the Atlantic respond? One view is that it’s crucial to uphold norms, even when the other side doesn’t. But Henry Farrell (whose work we discussed in TiB 42, 50
has a great piece that makes the opposite case
: without the willingness
to defect from norms, a party will struggle to enforce them. This is a variant of the “tit-for-tat” argument that is crucial in classic work on the evolution of cooperation
What does that mean in practice? One view
is that the Democrats should threaten to pack the courts. Farrell notes that the threat
of court packing was crucial to FDR’s political success. And, in an excellent piece, Matt Karp points out
that Abraham Lincoln had to go to war politically with the Supreme Court to end slavery. Others, like David Pozen
, think there might be room for a popular politics of “anti-hardball”. Whatever the answer, it’s important to get it right. Liberal democracies are rare, precious and more fragile than we’d like to think.