Monday, June 9, 2014

Snyder on the Clerks Who Killed Judicial Restraint

Brad Snyder, University of Wisconsin Law School, has posted The Former Clerks Who Nearly Killed Judicial Restraint, which also appears in the Notre Dame Law Review 89 (2014): 2129-54.  Here is the abstract:    
James Bradley Thayer (LC)
Richard Posner wrote that the theory of judicial restraint is dead and that the liberal decisions of the Warren Court killed it. Posner should have placed some of the blame on himself and other former Warren Court and early Burger Court clerks who joined the legal academy. As young law professors, they rejected legal process theory that they had learned in law school from Henry Hart and Albert Sacks at Harvard, Alexander Bickel and Harry Wellington at Yale, and from process theory's patron saints on the Court - Felix Frankfurter and John M. Harlan. Legal process theory yielded to new theories, including rights protection (John Hart Ely and Owen Fiss), Critical Legal Studies (Duncan Kennedy and Mark Tushnet), and law and economics (Richard Posner and Guido Calabresi). This symposium piece explores the rise and fall of legal process theory as well as the scholarship of former Warren Court and early Burger Court clerks who nearly killed it. It also suggests that there could be a revival of a process-based judicial restraint based on a new generation of late Burger Court/early Rehnquist Court clerks-turned-academics who came of age during the mid-1980s. These law clerks rejected judicial supremacy and adopted popular constitutionalism and other democratic approaches to constitutional interpretation. Popular constitutionalism is inspired by the same faith in the democratic political process as the judicial restraint advocated by James Bradley Thayer, Felix Frankfurter, and Alexander Bickel.

1 comment:

Shag from Brookline said...

This is interesting. I await reactions from at least some of the former clerks. The term "judicial review" does not appear in Article III or other parts of the Constitution. Nor does the Constitution provide for "judicial supremacy" horizontally over the Executive and Legislative branches.