Richard Pildes, Sudler Family Professor of Constitutional Law, delivered the 2009-2010 Thomas M. Jorde Symposium keynote address on April 14 at Princeton University. Pildes presented "Ungovernable America? The Causes and Consequences of Polarized Politics," with commentary by Paul Frymer, Nolan McCarty, and Sean Wilentz, all of Princeton University. The Jorde Symposium, sponsored by the Brennan Center for Justice, is held in two parts, in the fall and spring every year; Pildes also presented his lecture at the University of California, Berkeley, School of Law on November 16.

Starting from the fact that both Congress and citizens are more polarized than at any time since the late 19th century, Pildes explored the causes and consequences of this polarization. He demonstrated that this polarization began in the 1970s and has been increasing ever since. Pildes asked whether the causes of this extreme polarization suggest it is likely to be enduring, or whether the causes are more temporary, contingent ones, including institutions that we can imagine changing, should we so choose.

Pildes examined three potential causes of this polarization: persons, history, and institutions. He argued that extreme polarization is not due to the failings of individual political figures. We do not lack figures who could serve as the centrist, moderate, less partisan figures of the past. Instead, the structure of politics today drives those figures out of both political parties. The radical polarization of our times is a product, he argued, of much larger structural forces, not individuals, and no individual, including any particular president, can transcend those larger forces.

Instead, Pildes argued that deeper historical transformations in American democracy account for today’s extreme partisanship. Pildes singled out the historic Voting Rights Act of 1965, which he called “undoubtedly the most important and most effective civil-rights statute ever enacted,” as having “unleashed forces that, building on themselves over several decades, have caused a tectonic shift in the underlying foundations of American politics.” By bringing previously excluded black and poor white voters into democracy in the South, the Act broke up the one-party South, generated two-party competition there, and reconfigured the fundamental shape of American politics in ways that create our present circumstances.

Pildes then explored specific aspects of democratic institutional design in the United States to ask whether these large-scale historical forces could be channeled in directions that would diminish extreme partisanship. In particular, he examined the structure of primary elections, the role of gerrymandering and redistricting, and the way Congress is organized as features that contribute to extreme partisanship. He noted that “seemingly small-scale, micro-level changes in the legal rules and institutional frameworks within which democracy is practiced can have large effects in shaping the nature of democratic politics.” Of these, he argued that changes in the way primary elections are structured offer the best chance to mitigate the extreme partisan division among elected officials.

In his sobering conclusion, Pildes concluded that extreme polarization is likely to be enduring, despite the efforts of presidents and others to overcome it. For that reason, he argued, we should focus on addressing the consequences of this partisanship, since the causes are too deeply rooted to overcome. Pildes ended by proposing specific ways Congress might be reorganized to control the consequences of the extreme polarization that characterizes American democracy in our era.

Pildes joins a list of faculty affiliated with NYU Law who have given the Jorde lectures, including Walter E. Meyer Professor of Law Stephen Holmes and Geoffrey Stone, who regularly visits from the University of Chicago. Charles Seligson Professor of Law John Ferejohn, Frank Henry Sommer Professor of Law Ronald Dworkin, and Richard and Bonnie Reiss Professor of Law Samuel Issacharoff have served as commenters. The symposium was created in 1996 to honor Justice William Brennan and his former clerk Thomas M. Jorde. The lecture and commentaries will be published in the California Law Review.

Posted April 14, 2010