The Roberts Court Revolution, Institutional Legitimacy, and the Promise (and Peril) of Constitutional Statesmanship
Thomas G. Donnelly* | 26.3 | Citation: Thomas G. Donnelly, The Roberts Court Revolution, Institutional Legitimacy, and the Promise (and Peril) of Constitutional Statesmanship, 26 U. Pa. J. Const. L. 585 (2024).
Our nation is in the middle of a constitutional revolution. While many periods of constitutional transformation have arisen out of large-scale political realignments, the Roberts Court Revolution is a product of our nation’s long (and unusual) political interregnum. Even as neither political party has managed to secure enough support to reconstruct our nation’s politics, the Roberts Court—with its young and ambitious conservative majority—has already moved quickly to reconsider key pillars of the existing constitutional regime. This represents a challenging moment for the Roberts Court and its institutional legitimacy. To counteract this danger, the Justices might return to an old idea—one that has both seduced and vexed scholars and Justices alike for generations: constitutional statesmanship. When wrestling with the statesmanship ideal, theorists are often inclined to simply shrug their shoulders, concede that a precise definition is impossible, and suggest that we often know statesmanship when we see it. We can do better. In this Article, I define constitutional statesmanship for our age of constitutional revolution. Drawing on a diverse set of theorists and methodological approaches—most notably, Ronald Dworkin’s famous concept of “fit”—I argue that constitutional statesmanship is best understood as the balance between three modes of analysis: (1) legal fit (relying on conventional legal materials and arguments); (2) popular fit (drawing on concrete indicators of current public opinion); and (3) pragmatic fit (factoring in predictions about public responses, policy consequences, and assessments by legal elites).
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* Climenko Fellow and Lecturer on Law, Harvard Law School; J.D., Yale Law School; M.A., Princeton University; B.A., Georgetown University. For their suggestions, encouragement, and inspiration, I extend my deep thanks to Bruce Ackerman, Paul Frymer, Robert George, Jan-Werner Mueller, Robert Post, Jeffrey Rosen, Reva Siegel, and Keith Whittington.