Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Over the course of a little more than a century, American liberals (or in an earlier period, progressives) and conservatives have switched positions on judicial restraint, judicial review, and the role of the federal courts--not once, but twice. This cycling has multiple causes, including changes in the Supreme Court's docket and partisan strategies for judicial appointments.
Behind the composition of the Court's docket and the judicial appointments process, however, is a still deeper cause: the slowly changing structure of national party competition in the United States. Throughout American history national politics has been organized around a series of political regimes in which one party is dominant and sets the basic agenda for political contest. The dominant party also usually has more opportunities to shape the federal judiciary. Eventually the dominant party’s coalition falls apart and a new regime begins, led by a different party. This has happened six times in our nation's history, and we appear to be on the cusp of a seventh transformation.
Generational shifts in views about judicial activism and judicial restraint mirror the rise and fall of political regimes led by dominant parties. The kinds of the cases the Justices select, and how the Justices exercise their powers of judicial review, reflect whether we are early in the regime, in its middle years, or in its later days. For this reason, the rise and fall of regimes shapes partisan (and ideological) attitudes about the exercise of judicial review.
Early in a regime, the newly dominant party faces opposition from judges appointed by the old regime and obstacles from the constitutional jurisprudence those judges created. Hence its supporters tend to be more skeptical of judicial review. As the dominant party gains control of the courts, however, its followers increasingly recognize the importance of judicial review to promote and protect the party's commitments of ideology and interest. The positions of the two parties are symmetrical: as time goes on, the dominant party relies ever more heavily on judicial review to further its goals, while the other party gradually loses faith in the courts and increasingly preaches judicial restraint--although neither party entirely gives up on using the courts to promote its favored policies. As a political regime moves from its beginning to its conclusion, the positions of the two parties gradually switch, and so too do the views of legal intellectuals associated with the parties. The effect, however, is generational, and not everyone changes sides: older legal intellectuals may cling to their long-held beliefs about judicial review, while younger thinkers adopt a different perspective.
Constitutional theories--such as originalism and living constitutionalism--also evolve to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century.