Case Study 2: Constitutional Hardball Across Decades

What this case study does

This case study traces a chain of moves in constitutional hardball — legal but norm-violating exercises of formal political power — across the past four decades. The chain is constructed chronologically and presents each side's good-faith argument for the action it took. The case study does not adjudicate which side has been worse. It documents the trajectory: across both parties, the use of formal powers to maximum legal extent has escalated, with notable acceleration in the post-2016 period.

The selection of cases below is illustrative, not exhaustive. Each case has been treated by serious scholars from across the spectrum. Each defender of an action has had a real argument; each critic has had a real argument. The reader will assess the cumulative pattern.

1987: The Bork Rejection

In July 1987, President Reagan nominated Judge Robert Bork of the D.C. Circuit to the Supreme Court. Bork was a former Yale Law School professor, a former Solicitor General, and one of the most distinguished conservative legal minds of his generation. His judicial philosophy was unmistakably originalist; his prior writings opposed the constitutional reasoning behind Roe v. Wade, Griswold v. Connecticut, and several other liberal precedents.

Senate Democrats, led by Judiciary Committee Chairman Joe Biden of Delaware, organized a sustained opposition campaign. The campaign included extensive media coverage of Bork's writings and judicial philosophy. On October 23, 1987, the Senate rejected the nomination 42–58. Anthony Kennedy was eventually confirmed to the seat.

Democratic argument (steel-manned). The Senate's "advice and consent" role under Article II is substantive, not pro forma. The Senate is constitutionally entitled to evaluate a nominee's judicial philosophy and to reject a nominee whose interpretive approach the Senate finds inconsistent with its understanding of the Constitution. The opposition to Bork was conducted through ordinary legislative procedures, with hearings, floor debate, and a recorded vote.

Republican argument (steel-manned). The campaign against Bork represented a categorical change in the politicization of judicial nominations. Bork's qualifications were unimpeachable; his rejection was based on disagreement with his judicial philosophy as developed through his scholarship and prior decisions. The willingness to reject a qualified nominee on such grounds, and the use of advocacy-group mobilization and media campaigns to do so, transformed judicial confirmations into political contests in a way that earlier confirmations had not been.

Empirical observation. "Borking" entered the political vocabulary as a verb. Subsequent confirmations were progressively more politicized in their conduct, with both parties citing the Bork episode as a reason and, in some cases, as a justification.

2013: The Reid Nuclear Option

By 2013, the use of the Senate filibuster against executive-branch and lower-court judicial nominations had reached unprecedented levels. The Obama administration had multiple nominees stalled. On November 21, 2013, Senate Majority Leader Harry Reid (D-Nev.) invoked the so-called nuclear option, lowering the cloture threshold for executive-branch nominations and lower-court judicial nominations from 60 votes to 51. The rule change passed 52–48, with three Democrats joining all Republicans in opposition.

Democratic argument (steel-manned). Republican obstruction had reached a point at which the executive branch could not function. Multiple D.C. Circuit nominees had been blocked. Confirmation of National Labor Relations Board members had been blocked, leaving the agency without a quorum. The traditional 60-vote cloture threshold had operated under the assumption of good-faith use of the filibuster; that assumption no longer held. Reform was necessary to allow the constitutional functioning of the executive.

Republican argument (steel-manned). The filibuster's traditional 60-vote threshold for confirmations had served as a moderating influence, requiring presidents to nominate judges who could attract some cross-party support. Reid's change would inevitably be extended to Supreme Court nominations the next time the political stakes were high enough. Once unilaterally weakened, the threshold could not be restored. Reid was setting a precedent the Republican Party would later use against Democratic priorities.

Empirical observation. Reid's prediction (that the change would not extend to Supreme Court nominations) proved incorrect within four years. McConnell's prediction (that Reid's change would be extended) proved correct.

2016: The Garland Blockade

On February 13, 2016, Justice Antonin Scalia died unexpectedly at age 79. Within hours, Senate Majority Leader Mitch McConnell (R-Ky.) announced that the Senate would not consider any nominee from President Obama, holding the seat open for the next President. On March 16, Obama nominated Judge Merrick Garland of the D.C. Circuit, a moderate respected on both sides of the aisle, who had been confirmed to the D.C. Circuit by a 76–23 vote in 1997. The Senate held no hearings and conducted no vote on the Garland nomination. Garland's nomination expired with the close of the 114th Congress on January 3, 2017. After Trump's election, Justice Neil Gorsuch was nominated and confirmed in April 2017.

Republican argument (steel-manned). No Supreme Court vacancy had been filled in the final year of a presidency since 1932 (when Hoover's nominee Benjamin Cardozo was confirmed to a vacancy that had been pending for some months in February of that year). The principle of "letting the voters decide" — that a vacancy occurring close to a presidential election should be filled by the President elected in that election — was a defensible interpretation of the Senate's Article II role. The Senate was constitutionally entitled to refuse to act on a nomination, and the public could hold senators accountable through subsequent elections.

Democratic argument (steel-manned). The "no confirmations in an election year" precedent was largely fabricated. Multiple election-year nominations had been confirmed in earlier American history (including Justice Louis Brandeis in 1916, who was confirmed in June of that year). Garland's qualifications were beyond question. The blockade represented a new category of obstruction: not delaying a nominee or rejecting a nominee on substantive grounds, but refusing to consider any nominee at all. This was a categorical departure from the Senate's institutional role.

Empirical observation. The McConnell blockade is one of the most-cited examples in the asymmetric-hardball literature. Defenders argue that it was a discrete tactical move within the Senate's constitutional authority; critics argue that it represented a categorical institutional norm violation. Both arguments have been seriously defended by serious legal scholars.

2017: The McConnell Nuclear Option (Supreme Court Extension)

President Trump's nomination of Neil Gorsuch was filibustered by Senate Democrats, with the Democratic argument being that Gorsuch's confirmation would be illegitimate because the seat had been improperly held open. On April 6, 2017, the Republican-majority Senate, led by Majority Leader McConnell, invoked the nuclear option to lower the cloture threshold for Supreme Court nominations from 60 to 51 votes. The rule change passed 52–48 along party lines. Gorsuch was confirmed two days later 54–45.

Republican argument (steel-manned). Democrats had filibustered Gorsuch on grounds (the Garland precedent) that, on the Republican view, was itself a politicization of confirmation. The 2013 Reid precedent had already established that confirmations could be made by simple-majority vote; the only question was whether to extend the principle to Supreme Court nominations. Republicans argued that the symmetry was unavoidable.

Democratic argument (steel-manned). The 2013 Reid change had explicitly preserved the 60-vote threshold for Supreme Court nominations precisely to maintain the moderating role of the filibuster on the most consequential confirmations. Extending the change abandoned that distinction, with predictable consequences for the ideological composition of the Court.

Empirical observation. The 2017 change made it possible to confirm Supreme Court justices on simple-majority votes. Three Trump-nominated justices were confirmed on votes of 54–45 (Gorsuch), 50–48 (Kavanaugh, 2018), and 52–48 (Barrett, 2020). One Biden-nominated justice was confirmed on a 53–47 vote (Jackson, 2022).

2020: The Barrett Confirmation

On September 18, 2020, Justice Ruth Bader Ginsburg died, approximately 46 days before the November presidential election. McConnell announced almost immediately that the Senate would proceed with a Trump nomination. President Trump nominated Judge Amy Coney Barrett of the Seventh Circuit on September 26. The Senate confirmed her 52–48 on October 26, 2020 — eight days before the election. Senator Susan Collins (R-Maine) voted against confirmation on the procedural grounds that McConnell himself had cited in 2016.

Republican argument (steel-manned). The relevant procedural distinction was unified party control of the Senate and presidency. In 2016, the President was a Democrat and the Senate was controlled by Republicans, so the institutional posture supported deferring to the next election. In 2020, the President was a Republican and the Senate was controlled by Republicans, so unified party control supported proceeding. The Constitution does not prohibit confirmations close to an election; the Senate had the votes, and was within its constitutional authority.

Democratic argument (steel-manned). The 2016 precedent McConnell had cited — "let the voters decide" — was being reversed when reversal favored the same party. The principle, if it had been a principle, should have applied symmetrically. Critics characterized the asymmetric application as evidence that the 2016 blockade was post-hoc justification for what was always a strategic move, not a principled stand.

Empirical observation. The Barrett confirmation completed a 6–3 conservative supermajority on the Court. Subsequent decisions (notably Dobbs v. Jackson Women's Health Organization, 2022) reflected the new ideological composition. The combined effect of the 2016 blockade and the 2020 confirmation was the most significant ideological shift on the Supreme Court since the 1930s.

2021: Court-Expansion and Filibuster-Reform Proposals

After the 2020 election, Democratic majorities in both chambers and a Democratic President considered several institutional reforms:

• Filibuster reform: Proposals to abolish the legislative filibuster (so that voting-rights legislation, the John Lewis Voting Rights Advancement Act, the Freedom to Vote Act, and other priorities could pass on simple-majority votes) were advanced by Senate Majority Leader Schumer and others. Senators Manchin (D-W.Va.) and Sinema (then-D-Ariz.) opposed full filibuster reform, and the proposals did not pass.
• Court expansion: Several Democratic candidates in the 2020 primary had proposed expanding the Supreme Court to 13 or 15 justices. After taking office, President Biden appointed a Presidential Commission on the Supreme Court of the United States to study reform options. The commission's December 2021 report did not endorse expansion. The Biden administration did not pursue expansion legislation.

Democratic argument (steel-manned). The Court had been arguably stocked through hardball moves on the other side (the Garland blockade and the Barrett confirmation); proposing institutional reform was a legitimate response to a Court whose composition reflected those moves. The filibuster, similarly, had been used to block voting-rights legislation that addressed state-level changes that, on the Democratic view, threatened the democratic system itself. Reform was warranted.

Republican argument (steel-manned). Court expansion was the same FDR-era proposal that even FDR's own party had rejected in 1937 as an unacceptable assault on judicial independence. Filibuster abolition would remove the last meaningful check on simple-majority rule and would predictably be regretted when the political tide turned. Both proposals represented escalation in kind, not just degree.

Empirical observation. Neither filibuster abolition nor court expansion was enacted. Both are among the most-cited examples of proposed-but-not-implemented hardball moves on the Democratic side in the recent period.

2025: Trump-2 Period Norm-Pressing Actions

Beginning January 20, 2025, the second Trump administration has taken a series of executive-branch actions that legal scholars across the political spectrum have flagged as institutionally significant. Documented in the chapter's main text, the actions include: revival and expansion of Schedule F (removing civil-service protections from substantial numbers of federal employees); the firing of 17 Inspectors General without the 30-day notice to Congress required by statute; mass pardons of January 6 defendants; personnel actions at the Justice Department and FBI; deployments of federalized National Guard units in connection with civil unrest; public calls for prosecution of named political opponents; tariff actions invoking the International Emergency Economic Powers Act; and executive orders restructuring agency authorities.

Administration argument (steel-manned). Each of these actions is within the President's constitutional authority. Schedule F implements the President's Article II authority over executive personnel. The Inspector General firings exercise the President's removal power; the statutory 30-day notice provision is, on the administration's view, advisory rather than mandatory. The pardons exercise the constitutional pardon power, which is unreviewable by other branches. Tariff actions exercise authorities Congress delegated under IEEPA. Executive orders implement the President's authority to direct the executive branch. The fact that prior administrations interpreted these powers more narrowly does not preclude this administration from interpreting them differently within constitutional limits.

Critical argument (steel-manned). The cumulative pattern of actions represents a categorical assertion of executive authority that breaks with the post-Watergate institutional consensus. The Inspectors General were established precisely to provide independent oversight of executive agencies; firing them in mass without statutory notice undermines the oversight function. The pardons of January 6 defendants signal that violence in service of a presidential agenda is condonable. Calls for prosecution of opponents break the post-Watergate norm of separation between presidential political agenda and Justice Department independence. Federalized National Guard deployments in cities, contrary to state-level resistance, test the limits of federal-state constitutional authority. Each action might be defensible in isolation; the cumulative pattern is the concern.

Empirical observation. Litigation is ongoing on numerous fronts as of the writing of this chapter. Some actions have been upheld; some struck down by federal courts; many remain pending.

The trajectory

The cases above are not symmetric in detail. The Bork rejection, Reid's 2013 change, court-expansion proposals, and filibuster-reform proposals are on the Democratic side of the ledger. The Garland blockade, McConnell's 2017 change, the Barrett confirmation, and the Trump-2 actions are on the Republican side.

What the cases share is a trajectory of escalation. Each move was defended by reference to a prior move by the other side. Each move generated a counter-move. The cumulative effect is that, by 2025, both parties have moved toward exercising their formal powers to fuller legal extent than the institutional norms of the late twentieth century would have supported.

The asymmetric-hardball literature (Fishkin and Pozen 2018; Levitsky and Ziblatt 2018, 2023) argues that the post-2016 period exhibits an asymmetry: that constitutional hardball on the Republican side has been more frequent and more consequential than on the Democratic side, with the events of 2020–25 exemplifying that asymmetry. The rebuttal literature (Lee 2020; Schickler 2022; Bernstein 2019) argues that the asymmetry is overstated, that Democratic moves have been similar in kind, and that the differences are matters of opportunity and circumstance rather than partisan asymmetry.

The case study does not adjudicate the asymmetry debate. It states the trajectory plainly: across both parties, hardball has escalated. Whether the escalation is symmetric, and what it means for the institutional system, is for the reader to assess.