The Subterranean Counterrevolution: The Supreme Court, the Media, and Litigation Retrenchment

30 Pages Posted: 26 Apr 2015 Last revised: 16 Nov 2016

See all articles by Stephen B. Burbank

Stephen B. Burbank

University of Pennsylvania Carey Law School

Sean Farhang

U.C. Berkeley Law School

Date Written: 2016


This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of judicial decisions, despite the counterrevolution’s struggles in landscapes of democratic politics. This perspective also highlights normative concerns that arise when changes bearing on the fate of rights enforcement are not the result of public deliberation and democratic politics — indeed, when they may not be noticed by the public at all.

In this article, we explore further the theoretical underpinnings of our intuitions concerning public awareness of the relevant judicial decisions, and, for the first time, seek to determine whether they have empirical support. To that end, we explore relationships among the Supreme Court’s turn against rights enforcement, public understanding, and public preferences by analyzing an original dataset that comprises news coverage of (1) Supreme Court opinions ruling on substantive rights, and (2) opinions adjudicating opportunities and incentives to enforce those rights, such as standing, damages, fees, and the class action. Drawing on both theory and this empirical evidence, we argue that the Court’s decisions on rights enforcement, because of their lower public visibility, are less constrained by public opinion and therefore less tethered to democratic governance. We suggest, further, that the relatively subterranean quality of law affecting private enforcement of rights may help to explain why it has become even more ideologically divisive on the Court than substantive rights themselves.

Keywords: Empirical legal studies, public opinion and awareness, news coverage, issue salience, litigation, private attorney general, Supreme Court of the United States, politics of the judiciary, democracy, Federal Rules of Civil Procedure, rulemaking, rights retrenchment, conservative legal movement

Suggested Citation

Burbank, Stephen B. and Farhang, Sean, The Subterranean Counterrevolution: The Supreme Court, the Media, and Litigation Retrenchment (2016). DePaul Law Review, Vol. 65, P. 293, 2016, U of Penn Law School, Public Law Research Paper No. 15-7, Available at SSRN:

Stephen B. Burbank (Contact Author)

University of Pennsylvania Carey Law School ( email )

3501 Sansom Street
Philadelphia, PA 19104
United States

Sean Farhang

U.C. Berkeley Law School ( email )

694 Simon Hall
Berkeley, CA 94720
United States

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