Is the Constitution broken beyond repair?
That’s the argument legal scholar Ryan Doerfler and his collaborator Samuel Moyn (who we talked to last summer) made in a provocative New York Times article. Like many progressive thinkers, they question not just the document’s antidemocratic mechanisms, but — like their fellow scholar Aziz Rana — whether American trust in the Constitution amounts to a cult-like religious faith that has foreclosed possibilities for real change.
But even if the texts aren’t up to the times, the country isn’t beyond repair. And as institutionalists like Joe Biden and the liberal justices have seen their strategies fail in the atmosphere of collapsing trust that has enabled the rise of Trumpism, Doerfler asks whether there might finally be an appetite (and even an opportunity) for real reform of American institutions, no matter how difficult the task might now be.
We talked to Doerfler about what the disappearance of institutional trust means for the future of Americans’ faith in the nation’s founding documents, the fallout of the failure to seek real accountability after January 6 and court reform under the Biden administration, what it will mean to live under the law for the next four years, and how to start working for change under the worst of circumstances.
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There’s just been a smooth transition of power. But I wanted to ask about the failure of institutional accountability in the wake of January 6, 2021, and in the series of cases at the state and federal level leading up to Trump v. United States. Where do we stand right now, and what do you make of this institutional accommodation with the transition to whatever form of government it is we’re entering right now?
It’s a good question. I think it’s totally right that especially with the pardons coming for the few prosecutions surrounding January 6th, it does seem that you’re going to have effectively no accountability for that event, and it’s troubling and is concerning for the next four years and beyond. On the other hand, the tradition of the absence of elite accountability at the federal level, especially in the U.S., is long.
I think back to my early years of serious political consciousness during the Second Iraq War and the total lack of accountability following the War on Terror and torture and all of that. I think it’s not a surprise to see a lack of accountability, although I guess January 6 was in some ways cruder and had less institutional legitimacy. And so in that sense, one might have thought that it would have been handled differently.
On the other hand, I think because it’s so stark, I do hope that it can be a source of political mobilization for the left, that it helps create demand and space for more substantial institutional reform.
One way to look at what’s happened since January 6, 2021 is as a sort of kicking of the can of accountability down the road. We had House investigations. We had cases before the state courts, before the federal courts. Ultimately, the decision, for whatever reasons, good or bad, was that it would be left to the people in the 2024 election.
Now, we haven’t gotten accountability that way either. And now the can has been kicked down the road where it’s in the hands of civil society. What could accountability look like outside of the state?
It’s hard for me to know, beyond the extent that when it is handed to the electorate it has to look like making a case for an alternative, for a culture of accountability. I think it’s very difficult to do that.
This is not original to me, but others have observed that there was a real dissonance between, on the one hand, the sort of rhetoric that democracy is at stake in the most recent election, with that sort of soft-pedaling of all of the prosecutorial efforts and investigations surrounding January 6. If you really took that rhetoric seriously, the thought would be you would be much more quick to act on these sorts of concerns. And I think that’s real. I do think that Democrats have a credibility issue that they need to confront or address.
Speaking of the idea of a culture of accountability — and this is something we’ve talked about with colleagues of yours like Aziz Rana and Sam Moyn — people in the United States have faith in the Constitution as a sort of sacred text. And that faith is grounded not in the text itself or in the law, but in this received wisdom of norms.
But now you see people on the right talking about how we’re in a post-constitutional period. And on the left, there had been a lot of faith in the courts before this, especially in the Supreme Court — until we got to the current conservative supermajority. You’ve in the past advocated for deprogramming America from this cult of the Constitution. How do you see those articles of faith evolving now?
Aziz Rana does a nice job, I think, of detailing this in his most recent book. He describes the rise of this cult of the Constitution and this culture of constitutional veneration, as he calls it, during the post-war period. But I think as he describes, that culture is in a moment of notable decline. More broadly speaking, the appetite for really substantial institutional reform is much greater than certainly earlier in my life.
We’re in this period where people are acutely, on a daily basis, confronted with the reality that the existing institutions are not delivering what they need. People are much more willing — in really hopeful ways and in really alarming ways — to consider very different arrangements.
So in that sense, I don’t know how strong this culture of constitutional veneration is among the electorate. I do think that many institutionalist Democratic Party leaders — people like Joe Biden — are really invested in that culture and trying to rehabilitate it. But in terms of where the electorate’s at, I think that it’s not clear to me that there’s much confidence in that.
I think in part that’s because this culture of constitutional veneration wasn’t tied, in a way, to the actual document, which is this incredibly spare thing, and what concrete features the Constitution does contain are actually pretty visibly anti-majoritarian, right? The Electoral College, the Senate. Those are things that people actively dislike on the left.
And then you have vague, aspirational rights language that leads to either some court or the legislature, what content those institutions give to it. And insofar as people on the left, broadly speaking, have now lost confidence in the court, I think, for at least a generation.
The way people in general experience the Constitution is really through the rights granted through the amendments to the original document. And now we’re seeing this large-scale attack on the regulatory state, the administrative state, the agencies that are enabled by and protect those rights.
The fallout from Loper Bright and Ohio v. EPA is likely to be pretty significant and really have an effect on the way people live. We’re going to see a large-scale rollback of a lot of regulation and further erosion of rights. And we’ve already lost some very significant rights. Women are basically second-class citizens in the United States now.
So now do you think people are going to react to that ongoing attack, even if they’re not adherents to the constitutional faith? And what can the response be for people on the left?
I’m definitely worried. I’m someone who was initially somewhat skeptical of the more extreme forecasts. My take over the past few years has been that the court was less committed to rolling back the administrative state that we have and more committed to preventing new, more innovative approaches to regulation in areas like climate change or student debt, cases like West Virginia v. EPA or Biden v. Nebraska where the court strikes down new creative approaches to legislation. I thought that was the sort of balance that the court would strike because it could block an increased regulatory footprint without the legitimacy costs that come with rolling back existing regulations that people have grown accustomed to. But the legitimacy costs don’t seem to be something that they’re worrying about right now.
Exactly.
And I think that was really striking to me last term. And you mentioned Ohio v. EPA. That was the decision that for me, made clear that line is gone. And in turn, that legitimacy check on the court is gone.
You saw this play out in relatively short order in the way Dobbs was obviously a sort of maximalist decision. The court pushed aside Roberts’ more incrementalist approach and went for the bolder, more strident decision, with immediate electoral blowback, an immediate hit to the court’s popularity, sociological legitimacy.
And so then the next term, you did see a little bit of self-regulation in response to that. I think the court was a little bit worried that there would be some real fallout. But then move ahead to the following year, this past term, you know nothing happened, right?
2022 was perceived largely as a response to Dobbs. Then there was the feeling that the 2024 election would be driven in the same direction, but it really was split. There was no appetite to punish elected officials or candidates. At the same time, people were still interested in preserving those rights, but through all these referenda in the states to enshrine abortion rights in state constitutions, to push for minimum wage, to push for paid leave.
So one interpretation would be to say that’s an embrace of federalism. But that electoral disparity is one of the really interesting things to think through. In Florida, where nearly 60 percent of the public votes for a reproductive rights amendment to the Constitution. That fails because of the supermajority standard in that state, but still, almost 60 percent support. But Joe Biden gets wiped out simultaneously. What explains that, right?
Another story, that I’m at least tempted by, goes back to this credibility problem where the electorate knew that reproductive freedom really was on the ballot, right, in the form of a state referendum. They voted for it.
But did they really believe the Democrats? The Democrats were in power when Dobbs was handed down. Was it really true that if Democrats had prevailed in 2024 that Dobbs would get undone? I don’t know. So in that sense, I think on the one hand, I think the referenda strategy was a promising one.
And it’s sort of encouraging to me as someone who would identify as being on the left or progressive, that in terms of those attitudes towards first-order issues where they can be put on the ballot directly, there seems to continue to be broad support. But I do think convincing people that voting blue is actually going to bring about or protect those values that people care about — that’s a challenge. It seems like that strategy is not going to work going forward.
So looking ahead to the next two or four years, is that a model for how we can realize some left and progressive goals on these first-order issues? What’s the path here?
I do think in terms of immediate advances, state-level referenda are promising, especially for areas where what you’re dealing with is the mere absence of federal protection.
Because part of this has to do with whether this or that is an area that’s currently governed by federal law. Because of the supremacy clause, state law cannot displace federal law. So then you’re sort of limited. But so far, for instance, we don’t have fetal personhood being discovered by the Supreme Court. And so currently, at least for reproductive freedom, state-level protections are available. And I think that’s promising in the short term.
That would be another way for the Democratic Party to build credibility, to show actual results. State parties could really identify themselves strongly with those referenda. Also, state-level legislation, obviously, in blue states. So I think that’s promising in the short term. At the same time, I mean, I’m very much of the view that we have many national and global problems that require national and global solutions. I don’t think that’s sufficient.
We’re likely to see very little action on those important national-scale and global issues for the next two to four years. And I assume the things you have in mind are basic rights, climate, things like that. Though you do hear people talk about things like how California can pressure the entire country in terms of emission standards.
It’s not really enough. I’d mentioned this idea of federal preemption. So my colleagues, Sharon Block and Ben Sachs, work on this. They write about the opportunity, but also the challenges for more worker- or union-friendly regulation at the state level, given that courts presently construe federal labor law as broadly preemptive of more protective state legislation. So depending on the issue area, I think there’s more or less space.
What are some other issues where we might see this model playing out?
It’s a good question. Environmental protections are one. Things like minimum wage laws, or basic economic protections. Other things are also challenging. This is part of the reason why the federal government is so critical to people’s just day-to-day welfare. In the areas where there is broad support, the federal government has a much easier time financing robust social programs than the states. States are consistently cash-strapped.
But we’re seeing the incoming administration talking about pretty radical means of restricting financing now. It seems like they’re kind of looking to preempt that sort of approach in a way. I don’t know if they’ve thought it through as much as you have.
As with all things with a new administration, what’s rhetoric and what will come to fruition remains to be seen. And they may not even know in advance.
There’s no map for what we’re getting into, I don’t think.
There are so many possibilities that I think it’s very difficult to reason in advance about concrete things. It’s a little frustrating, but I think one has to be in more of a reactive posture in terms of where is the hammer really going to come down, even with signature policies, like the tariff policy. What’s that going to look like? It’s totally unclear.
How are you preparing for that uncertainty? Because clearly, you are. You’ve written a whole lot about this stuff in the past. And again, as we were talking about a little bit earlier, you know there is this continuity with the kind of erosion of norms over the years. And you know it’s one step along that continuum. But how are you getting ready to engage with this, whether in the legal arena or in terms of your teaching?
My project for the past four years has been on court reform in particular. And although the recent election outcome means that, practically speaking, that is off the table for the next four years, that was a medium-term project regardless. And I do think that in the current situation, maybe within the Democratic Party coalition, there’s a bit more space for movement.
Joe Biden was a strong institutionalist, really opposed to court reform from the jump. And that just placed a real constraint on any sort of meaningful efforts towards court reform just within the Democratic Party. You saw, though, once he announced that he wasn’t going to run again, much more creativity from pretty mainstream Democratic senators in the area. Chuck Schumer put forward the No Kings Act in response to the Trump immunity decision, a very aggressive response to reclaim the authority of Congress to construe the Constitution rather than leaving it to the court.
The other bill that really excited me was from my former home state senator, Ron Wyden, who had this fantastic court reform bill combining, on the one hand, an expansion of the court to 15 seats, but also with a supermajority requirement, requiring a two-thirds supermajority for the Supreme Court to invalidate federal legislation. I think that sort of ambitious omnibus court reform proposed legislation was not something that we had seen previously.
I think there is real demand among the Democratic electorate for that kind of creative thinking. So I’m hoping that over the next two to four years, as there is a broader debate about what the Democratic Party is going to look like in the years to come, we’ll see that sort of energy from elected officials and other participants in the process.
After reading the Roberts year-end report, I went back to this piece you and Sam Moyn had written for the Times, about the ineffectiveness of dissents and the language that liberal and progressive jurists are using. Your charge there is basically that they’re subscribing to the sort of misplaced institutionalist faith that you see in a figure like Biden. Do you see that changing now?
It’s a really good question. I think there’s a combination of, on the one hand, a sort of institutionalism among the liberal justices that has prevented at least some of them from adopting more aggressive stances in dissent. On the other, though, there is a sort of strategic calculation that they can give up fiery dissents in exchange for slightly moderated, slightly more modest judicial or majority opinions. I think both aspects are at play.
But what we’ve seen over the past two or three terms is that the strategy has been largely a failure, especially on the issues that matter most to people. I mean, the conservative supermajority has shown its willingness to just go big in areas that they care about. You saw that in Dobbs. You saw that in Loper Bright. There are numerous examples.
Elena Kagan, who I think of as the most centrist of the three liberal justices, has most explicitly adopted a pro-democracy framing in her dissents. She famously said, “We’re all textualists now.” She’s taken that rhetoric of originalism, formalism, and textualism in particular seriously. And that theory of interpretation is grounded in democracy, right? It’s about respecting democratic choices made by elected officials. And so she looks at the way that the court is acting now that they have a conservative supermajority and says, “Okay. Well, clearly, you didn’t believe in any of this, right? And clearly, you don’t actually believe in democracy.”
Maybe just because she had much more explicitly taken a strong methodological stance and perhaps she did so for strategic reasons. But now that she sees her conservative colleagues abandon that methodological commitment in the name of advancing certain partisan goals. Maybe that has radicalized her a bit. I don’t know.
Sonia Sotomayor, who I would have thought of as the leftmost of the liberal justices, has been much more institutional, much more protective of the court as such in ways that I think is interesting.
Taking the Roberts perspective of, “Let’s talk about the importance of the status of the court.”
Yeah. And I also think — maybe I mean hope — that the liberal justices would just get frustrated at some point. Already last term the court was much less inhibited than it was the previous year. And I think now on the heels of a Trump victory, and with the likely additions to the court very likely to be quite strident individuals, it may just be that that sort of damage control approach to being a dissenting justice will seem less attractive. One can hope, at least.
In terms of what that looks like, there’s two parts to it. One, there’s the traditional Holmes, Brandeis sort of bold defense articulating an alternate constitutional vision that someday may be embraced by a majority on the court. That’s one more ambitious approach.
The other, though, that frankly interests me much more in terms of not wanting to have a juris-centric politics, would be along this Kagan line of using the rhetoric of democracy, hinting at or trying to potentially legitimate the idea of external reform, and identifying Congress as perhaps the most legitimate interpreter of the Constitution, but also calling for other actors to come in and intervene and restrain the court. I think that’s the most useful thing that a liberal justice could do, to try to legitimize the idea of court reform.
Now, is that going to happen? So far as appealing to other institutions to intervene here. Who do you have in mind?
Well, I mean, long-term, I think it would have to be legislative. And I think the healthiest form of judicial reform, resistance to the Supreme Court, would be through lawmaking. At the same time, I think — again, this is sort of four years out — but if the Democrats were to retake the White House but not have a trifecta when there are also various forms of pushback that the executive can engage in. And again, you saw a little bit of this with Biden with the sort of creative student debt cancellation approach. Again, Joe Biden was not disposed to push back against the court, but I think was successfully pressured to do so to some degree. And a less firmly institutionalist president could be even more confrontational.
The other possibility over the next two to four years one could imagine would be civil society resistance. During the civil rights era, Martin Luther King and other activists defied a state court order prohibiting a protest in Birmingham and advancing their cause. And so one could imagine analogous forms of resistance from civil society, from labor unions, from trans rights activists in the coming years.And were those situations to arise, it would also, I think, be wise and just for Democratic elected officials to stand in solidarity with those groups.
We were talking earlier about the attitudes of the electorate and peoples’ interest in protecting their basic rights, even if they don’t have faith in the Democrats. I’m wondering about how you see people’s experience of the law evolving now, both for lawyers who are working to safeguard rights and people who are experiencing the law. And that’s both given the disappearance of these protections that we’re talking about, the willingness of the court to go after precedent.
I think it’s a real challenge. I see this you know maybe most starkly in my role as law professor, right, where I see my students sort of looking like getting ready to become practicing attorneys and really not being sure how to go about that. And I think that’s a real rational response to the circumstances.
One constructive thing is that I think this has helped demystify the law and has made apparent the political character of the law and the institutions that hold the law in place. And that helps young attorneys, citizens, to think in a broader political way about legal institutions. The law exists within a political structure. And I think people have a better understanding of the need to create the conditions where something like a well-functioning legal order can exist.
But in people’s experiences, the law seems a lot less reliable because of that. And so hopefully, most optimistically, that will help politicize and activate people to do something constructive about the situation. On the other hand, I think operating within the legal system, like if I’m a practicing attorney in the coming years, I think it’s just a lot of damage control. And it’s very challenging. It’s very unfavorable terrain.
But I think if that sort of damage control work is being done simultaneously with organizing efforts around institutional reform, maybe as a broader political package, that feels less hopeless.
Because just doing damage control is not motivating: “Okay. Things are really bad, but they could be even worse.”
That was the failure of “defend democracy” as a campaign message.
Totally. They were unable to turn that into anything. It happened on your watch. So what? Contrast that with 2020, with the For the People Act, which was actually quite ambitious pro-democracy legislation. But that was not the promise of the defend democracy campaign in 2024. It was just promising or asking for a return to norms.
This goes back to another thing we were talking about earlier — that the norms have collapsed, that everything really does have to be moved into the explicit realm of politics now. We need to figure out what the rules and the laws are and forget about the norms that were greasing the wheels all along.
I think so. We’re clearly in a moment of destabilization, of instability, reflected in this highly polarized, knife-edge majority political situation. That’s not a durable arrangement. There’s going to have to be a realignment, some sort of breakthrough, pushing through that situation and returning to a situation where actual governance is possible.
I think that’s just going to be something that we have to or that we will experience like one way or another, whether it’s an attractive form of governance or a terrifying one. But I think only once we do that can norms be established again. I think we’re just in this sort of uncertain, destabilized state. And that is just a state of difficult politics.
We’re in a gap where the possibility of the old institutionalism, the Biden institutionalism is gone, waiting for the next order to emerge.
Exactly. There is no back to normal. That normal is gone. There will be a new normal in the years and decades to come, but we have to make it.
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Photo by MANDEL NGAN/AFP via Getty Images; Ryan Doerfler photo courtesy Harvard Law School
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