Constitutional Hardball

⬅️ Hub: 60.3 Politics · Applied in: Supreme Court Expansion — Argument Map and Fact Check · Case study: Merrick Garland Nomination · Adjacent: Abolishing Filibuster · Law

The term of art for political moves that are technically legal but norm-defying — the grey zone between ordinary politics and unconstitutional action. It is the concept that makes the court-expansion debate intelligible, because both sides accept that the disputed moves are lawful and disagree only about whether lawfulness is the point.

Tushnet’s original definition

Constitutional hardball consists of “political claims and practices that are without much question within the bounds of existing constitutional doctrine and practice but that are nonetheless in some tension with existing pre-constitutional understandings.”
→ Mark Tushnet, Constitutional Hardball, 37 J. Marshall L. Rev. 523 (2004)

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The Core Idea

Written rules underdetermine political practice. A great deal of constitutional government runs on conventions — unwritten expectations about how actors will use powers they unquestionably possess. The Senate is not obliged to vote on a nomination. Congress is not obliged to keep the Court at nine. A president is not obliged to release tax returns. Nothing in the text forbids the aggressive option.

Hardball is what happens when an actor takes the aggressive option anyway, usually because the payoff is large and the only thing that was stopping them was a norm. The distinguishing marks:

1. Legal on its face — this is what separates hardball from a coup or a defied court order.
2. Norm-defying in substance — it violates a settled expectation about how the power is used.
3. Advantage-seeking — it is done because it pays, not because circumstances forced it.
4. Contestable in framing — the actor can always describe it as ordinary politics, and often sincerely believes it.

The fourth feature is why these disputes are so intractable. There is no neutral scorer, so each side’s hardball is the other side’s overdue correction.

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Why It Escalates

The standard model is tit-for-tat: unpunished defection teaches that defection is free, so the other side matches it, and the baseline shifts. Each round is justified by the last.

The judicial-appointments ladder is the canonical illustration, and note that where you start the story determines who is the aggressor:

The 2013/2017 sequence is the most commonly mis-told rung

Both partisan retellings are incomplete in mirror-image ways:

• The Republican version (“Democrats went nuclear first”) omits that Reid carved the Supreme Court out in 2013. McConnell removed the carve-out.
• The Democratic version (“McConnell raised the stakes in 2017”) omits that the immediate trigger was Democrats filibustering Gorsuch — the first successful partisan filibuster of a Supreme Court nominee in history.

Both facts are true. Each side reports the one that makes the other the aggressor. The full sequence is: Bork → Estrada → Gang of 14 holds → Reid 2013 (SCOTUS excluded) → Garland → Gorsuch filibuster → McConnell 2017 (SCOTUS included). Every link is a genuine response to the one before it.

Nobody agrees where the ladder starts

Seligman: “even marking the start of this conflagration is itself contentious.” This is not a detail — every retaliation argument requires a first defector, and the identity of the first defector is exactly what is disputed. An argument that works regardless of who went first is not a retaliation argument at all; it is a bare argument from advantage.

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The Asymmetry Debate

The most consequential live question: is hardball practiced equally by both parties, or has one side escalated systematically?

• The asymmetry thesis — Joseph Fishkin and David Pozen, Asymmetric Constitutional Hardball, 118 Colum. L. Rev. 915 (2018): Republicans have played hardball more aggressively and more systematically since roughly 1993.
• The response — David Bernstein, Constitutional Hardball Yes, Asymmetric Not So Much: accepts the escalation, disputes the one-sidedness.
• The refinement — Jed Shugerman, Hardball vs. Beanball: Identifying Fundamentally Antidemocratic Tactics: the category is too coarse; distinguish tactics that are merely aggressive from those that attack democratic participation itself.
• Fishkin and Pozen published a reply to both.

Use this exchange rather than the headline claim

The asymmetry thesis is live scholarship, not settled fact. Citing Fishkin & Pozen as though it were established overstates the literature — and anyone who has read the exchange will say so. Shugerman’s distinction is the most portable takeaway: the question worth asking is not “is this hardball?” but “does this tactic attack the mechanism by which the other side could win next time?”

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The Best Objection to the Framework

It comes from Tushnet, who invented it. Quoted in Epps & Sitaraman:

“There are numerous difficulties with this informal game-theoretic argument.” It is hard to say what the “rounds” of the game even are, and “when rounds of play are separated by long periods of time, the actual people who play against each other can be quite different.”

Tit-for-tat is a strategy for a repeated game between stable players with a shared scorecard. American parties across decades are none of those three. A retaliation in 2025 for a defection in 2016 punishes different people, in a different configuration, who read the history differently.

The second structural objection is reversibility. Tit-for-tat assumes moves that can be answered and then unwound. Most hardball qualifies: a filibuster can be restored, a blocked nomination filled after the next election. Life-tenured appointments do not. Where the moves are irreversible, the model stops describing a stable equilibrium and starts describing a ratchet — Braver’s “tit-for-tat downward spiral” in which the Court balloons “so large that its legitimacy pops.”

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Positions People Take

The four stances, steelmanned

1. Restore the norms. Hardball is corrosive; the response is unilateral restraint plus institutional repair. Weakness: unreciprocated restraint is just losing, and produces no incentive for the other side to stop.

2. Repair by design. Do not retaliate — change the rules so the tactic stops paying. Term limits, a regularized appointments schedule, vesting the appointment in the president in office when the vacancy arises (Seligman). Weakness: most versions need a constitutional amendment or bipartisan cooperation that does not currently exist.

3. Retaliate to restore deterrence. Norms only bind when defection is punished; punish it. Klarman, Belkin. Weakness: requires the other side to read the punishment as punishment rather than as a fresh offence.

4. Embrace it. The norms were always a coordination device among elites; treat politics as it is. Weakness: has no stopping rule, and the historical cases where a party crossed this line are not encouraging.

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How to Use This in Argument

Diagnostic questions

• Is it actually legal? If not, this is the wrong frame — that is a constitutional violation, not hardball.
• Which norm, stated how precisely? “Norms” is often a placeholder for “things I expected.” Name the convention and show it was previously observed.
• Who defected first, and by whose clock? If your argument needs a first defector, you owe an account of why your starting date is the right one.
• Is the move reversible? This is the single best sorting question. Reversible moves can be answered; irreversible ones ratchet.
• Does it attack the mechanism of future competition? Shugerman’s beanball test — gerrymandering and franchise restriction differ in kind from a hard-fought confirmation.
• Would you accept it if the parties were reversed? The cleanest test of whether you are describing a principle or a preference.

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Distinguish From

• Norm erosion — gradual, often unintentional decay. Hardball is deliberate and strategic.
• Unconstitutional action — hardball is legal; that is the whole point of the category.
• Ordinary hard-fought politics — a party-line vote on a bill is not hardball. Refusing to hold the vote at all might be.
• Court-curbing — jurisdiction-stripping, budget pressure, supermajority requirements. Braver’s point is that American history is full of reversible court-curbing and nearly empty of court-packing.

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Key Sources

Foundational

• Mark Tushnet, Constitutional Hardball (2004) — the origin of the term
• Fishkin & Pozen, Asymmetric Constitutional Hardball (2018) — the asymmetry thesis
• Bernstein, Constitutional Hardball Yes, Asymmetric Not So Much — the pushback
• Shugerman, Hardball vs. Beanball — the sharpest refinement

Applied to the Courts

• Joshua Braver, Court-Packing: An American Tradition? (2020) — the spiral argument and the historical record
• Matthew Seligman, Court Packing, Senate Stonewalling (2022) — formal models of the escalation game
• Aaron Belkin, Court Expansion and the Restoration of Democracy (2019) — the case for playing hardball deliberately
• Presidential Commission on the Supreme Court — Final Report (2021) — official survey of the appointments dispute

Comparative Warning

• Kim Lane Scheppele, Autocratic Legalism (2018) — what happens when hardball becomes the operating system: autocrats “use their democratic mandates to launch legal reforms that remove the checks on executive power”
• Wojciech Sadurski, Poland’s Constitutional Breakdown (2019) — the case study

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Cross References

• Supreme Court Expansion — Argument Map and Fact Check — where this concept does the heaviest work
• Merrick Garland Nomination — the central American case study
• Abolishing Filibuster · Ending Gerrymandering · Supreme Court Reform
• Law · Founding Fathers · Republican Party · 60.3 Politics