William & Mary Law Review


Justin Levitt


In a polarized political environment, allegations of excessive partisanship by public actors are ubiquitous. Commentators, courts, and activists levy these allegations daily. But with remarkable consistency, they do so as if “partisanship” described a single phenomenon. This Article recognizes that the default mode of understanding partisanship is a descriptive and diagnostic failure with meaningful consequences. We mean different things when we discuss partisanship, but we do not have the vocabulary to understand that we are talking past each other.

Without a robust conceptualization of partisanship, it is difficult to treat pathologies of partisan governance. Indeed, an undifferentiated approach to partisanship makes it difficult to distinguish the features from the bugs in our political system.

Moreover, the failure to understand partisanship impairs our ability to confront the partisanship we care about most. Most observers attempt to constrain unwanted partisanship through substantive rules and structural design. But parsing the spectrum of partisanship shows that these tools are neither necessary nor sufficient to address partisanship in its most disparaged forms. Conversely, analysts have failed to appreciate the power of strong situational norms to combat the least justifiable partisanship. Contrary to conventional wisdom, officials seem to refrain from this form of partisanship far more often than they succumb to it, and norms may provide the explanation. Because these norms are socially constructed, the way we talk about partisanship matters. And we are likely getting the discussion very wrong, undermining exactly what we would hope to preserve.

This Article attempts to flesh out the distinctions that have been heretofore elided. It develops a typology of partisanship, and then engages that conceptual structure to assess the various tools by which forms of partisanship—including the most pernicious portions of the partisan structure—may be addressed.