Book Review

Meet The New Boss:
The New Constitutional Order
by Mark Tushnet
(Princeton Univ. Press, 2003)

reviewed by Richard A. Forsten, Esquire

In 1996, President Clinton famously declared “[t]he age of big government is over.” Many thought Clinton was betraying Democratic Party ideals, others thought he was stealing Republican themes. To Professor Mark Tushnet, Clinton was merely recognizing what had already occurred over the preceding two decades – a fundamental change in the institutions of government, or, put another way, the emergence of a new constitutional order. By constitutional order, Tushnet means “a reasonably stable set of institutions through which a nation’s fundamental decisions are made over a sustained period, and the principles that guide those decisions.” Tushnet sees the country now being guided by a new constitutional order, separate and distinct from what he calls the New Deal - Great Society constitutional order. His book is a look at the politics and, more critically, the Supreme Court in both the old and the new constitutional orders.

In terms of politics, Tushnet finds a much more polarized electorate and a preference for some divided form of government (i.e., a president or at least one house of the legislature in control of different political parties). Interestingly, he traces the increased polarization to the Supreme Court’s decision in Baker v. Carr. As congressional districts (as well as state house and senate districts) have been redistricted and redistricted over the years, voters within each district have become more homogeneous, but the voters across districts have become more heterogeneous. Thus, these more sharply divided districts in turn elect more sharply divided candidates leading to a more sharply divided Congress (and more sharply divided state legislatures). Tushnet also discusses presidential power, the politics of preemption (whereby one party steals the ideas of the other so as to moot any perceived electoral advantage), the media, and the increasing detachment of the general public from politics in general – the general public often seems to treat politics as merely another form of entertainment, and treats political strategies and outcomes as sporting events (one party beats the other on some bill, etc.). Tushnet’s discussion of politics and the political system in the new constitutional order, though, is fairly limited and general.

Tushnet spends the bulk of his book reviewing the work of the Supreme Court. He reviews various areas of the Court’s work since the Warren Court but finds that while the Warren Court may be dead, the modern Supreme Court has not undone the earlier Court’s work. Indeed, he notes that the Rehnquist Court explicitly did not reverse Roe (actually a Burger Court opinion) or Miranda, two highwater marks of the earlier, more activist constitutional order. Tushnet believes that the modern Court has trimmed back on what it perceives as excesses of the earlier Court without repudiating entirely what was done. Indeed, in search for a jurisprudential theory that best describes the modern Court, Tushnet hones in on minimalism – the idea that the Court will decide the case before it, but do so in a way which, as the name suggests, will have a minimal impact and leave room for future developments. Broad, expansive and sweeping opinions are not the order of the day.

The Court today, indeed, the new constitutional order in general, is more modest in its ambitions. According to Tushnet, the guiding principle of this new regime is not that government cannot solve problems, but that it cannot solve any more problems. The era of bigger and bigger government may be over, but we still have a pretty big government and it will still work hard in those areas where it is already involved.

Tushnet’s arguments are interesting and thought-provoking, but have we truly entered a new constitutional order? Many might argue that courts are just as activist as ever, or that politics, even in the days of the New Deal and Great Society, were just as partisan as they are now. While modern Supreme Court opinions may not be as sweeping as earlier Warren and Burger Court opinions, some would nevertheless say that recent decisions involving affirmative action, homosexuality, the death penalty, the 2000 presidential election and others still have just as significant an impact.

If there is a significant difference concerning the Supreme Court under the new constitutional order as compared to the old, perhaps it is in the acceptance of the Court’s power. Whereas much of the criticism of the New Deal – Great Society constitutional order focused on whether the Court should be the final arbiter of so many disputes and wield the power that it did, there would now seem to be less criticism of, and indeed a general acceptance of, the Court’s power. Instead, criticism of the Court today seems to focus much more on how the Court should use its power. Perhaps not surprisingly, with the greater acceptance of the Court’s role, the emphasis has now shifted much more markedly to who will sit on the Court and wield that power. Hence the much greater scrutiny and acrimony in the judicial appointment process – not only at the Supreme Court level, but at lower levels as well. Under either order, though, the Supreme Court itself still plays a significant role. Some of the Court’s doctrines may evolve as the Court’s membership changes, but the role of the Court remains the same. So meet the new boss, same as the old boss.

Return to May 2004 Table of Contents.