An Unexpected Antagonist: Courts, Deregulation, and Conservative Judicial Ideology, 1980-94
Making Legal History Essays in Honor of William E. Nelson, edited by Daniel J. Hulsebosch and R.B. Bernstein, 264-292. New York: New York University Press, September 2013
16 Pages Posted: 7 Nov 2014
Date Written: January 1, 2013
This article examines the judicial response to attempts by the administrations of Ronald Reagan and George H. W. Bush to promote a deregulatory agenda through executive action. It describes how the federal judiciary frequently prevented both administrations from implementing deregulatory policies despite the fact that by the late 1980s politically conservative judges dominated the bench. The essay identifies two reasons for this judicial resistance. First, because executive deregulation required courts to adopt a highly deferential posture towards executive action, courts allowing it would have been forced to endorse administrative law doctrines that transferred a great deal of power from courts to the executive. Conservative judges were unwilling to take this step. Their institutional interest in retaining power over the administrative state trumped their political inclinations. Second, judicial rejection of executive deregulation illustrates a contradiction within late twentieth-century conservative ideology. Conservatism was committed to anti-statist policies such as deregulation. It was also, however, extremely hostile to what it perceived as judicial activism. Consequently, conservatives developed a series of mechanisms that were intended to limit the powers of the courts. These included textual approaches to statutory interpretation, and a belief in originalism in both constitutional and statutory interpretation. A commitment to both textualism and originalism undermined executive deregulation. Thus, conflicting impulses within late-twentieth-century conservatism limited the ability of conservatives to put their reform agenda into effect.
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