Fifty years ago, when the Harvard Law Review asked Professor Harry Kalven, Jr., to take stock of the Supreme Court’s 1970 Term, Kalven faced a task not unlike Professor Cristina Rodríguez’s. That Term’s Court had two new members, Justices Harry Blackmun and Warren Burger. The Nixon Administration was young, but clearly bent on making its own stamp on American law, including via the Supreme Court. Kalven thus expected to see “dislocations” when he reviewed the Court’s recent handiwork. He reported the opposite. Surveying a Term that included such cases as Palmer v. Thompson, Younger v. Harris, Boddie v. Connecticut, and Citizens to Preserve Overton Park v. Volpe, Kalven noted significant doctrinal developments, but ultimately found “the continuities” more striking than “the discontinuities.” Perhaps he hoped to assuage fears that the Court was becoming “a political agency and nothing more.” In any event, he underscored the Court’s institutional “stamina” and the “powerful pressure towards continuity.”
By contrast, Rodríguez’s Foreword emphasizes discontinuity — not in the output of the Supreme Court from Term to Term but in the legal and policy orientations of the executive branch as it has transitioned from President Trump to President Biden and as it will transition to other leadership in the future. In her telling, because the Court is, in important respects, a political agency (although also something more), she urges it not to impose undue impediments on Executive-led change.
We read Rodríguez’s Foreword as a compelling and nuanced defense of presidential primacy (although, importantly, she does not claim that exact term). She offers a description of the contemporary legal and political landscape in which the inauguration of a new President sometimes initiates a political “regime change,” marked by Executive-led efforts to make consequential changes in law and policy (that is, to instantiate a new “legal regime”). She then urges readers to be comfortable with both types of change — to accept that electoral victories bring with them “control of the machinery that turns political visions into everyday realities” and, moreover, to want a government that can be nimble and energetic, even when a new regime does not align with one’s personal preferences. Put simply, she offers a vision of contemporary democratic governance in which “regime change,” emanating from the executive branch, is both what we have and what we need. That one regime will undo some of the work of a previous regime is not an argument against presidential primacy, but rather an argument in its favor.
Our Response makes one major point: however appealing we may find Rodríguez’s argument from a pragmatic and presentist perspective, we should recognize that it exists amidst — and sometimes draws its appeal from — troubling historical developments in the workings of our democratic institutions. The urgency of our current problems, the relative ease of government by “pen” and “phone” — these are reasons to be attracted to Rodríguez’s vision, but they are also arguably symptomatic of structural failings. They should be recognized as such, alongside a recognition of forces that now threaten democracy itself. A broader theoretical and historical view makes this clear.
Administrative law, democracy, executive power, presidential administration, voting rights
Harvard Law Review Forum
Ahmed, Arshaf and Tani, Karen, "Presidential Primacy Amidst Democratic Decline" (2021). Faculty Scholarship at Penn Carey Law. 2987.