The Former Clerks Who Nearly Killed Judicial Restraint
Notre Dame Law Review, Vol. 89, No. 5, 2014
27 Pages Posted: 6 Jun 2014
Date Written: June 4, 2014
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.
Keywords: Richard Posner, Law and Economics, Legal Process Theory, Critical Legal Studies, Originalism, Popular Constitutionalism, Hart and Sacks, Warren Court, Supreme Court clerks, Alexander Bickel, Felix Frankfurter, James Bradley Thayer, John Hart Ely, Owen Fiss, Guido Calabresi, Duncan Kennedy
JEL Classification: K41
Suggested Citation: Suggested Citation