How the Rise and Fall of Regimes Affects Judicial Review

Abstract

The rise and fall of regimes shapes partisan attitudes about judicial review. How people feel about judicial activism and judicial restraint depends on where they are in political time, and which party tends to control the federal courts. The parties’ positions are mirror images. Over the course of a regime the dominant party increasingly relies on judicial review to achieve its goals, while the opposition party becomes increasingly skeptical of judicial review and advocates judicial restraint—although neither party ever fully abandons using judicial review to advance its policies. As the cycle moves from the beginning of a regime to its final days, the parties—and the legal intellectuals allied with them—gradually switch positions. The party of judicial restraint becomes the party of judicial engagement, and vice-versa. The effect, however, is generational; older people may stick with their hard-won lessons about the courts, while younger generations, who have very different experiences, take contrary positions.