The former clerks who nearly killed judicial restraint.

• Author: Snyder, Brad (American law professor)
• Position: The Evolution of Theory: Discerning the Catalysts of Constitutional Change

ABSTRACT

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. A 5 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.

INTRODUCTION

In The Rise and Fall of Judicial Restraint, Richard Posner declared that Thayerian judicial restraint was dead. (1) He even identified the theory's cause of death: the liberal decisions of the Warren Court. (2) Posner's critique in many ways reflects conventional wisdom. Once the Warren Court let the genie out of the bottle in Brown v. Board of Education (3) and declared itself the "ultimate interpreter of the Constitution" in Baker v. Carr, (4) we entered an uninterrupted era of judicial supremacy.

Posner's article, part of a California Law Review symposium, recognized that the theory of judicial restraint has many definitions. (5) Posner focused on James Bradley Thayer's constitutional theory that the courts should overturn a federal statute only in extreme situations (i.e., when the statute was unconstitutional "beyond reasonable doubt" (6)). (7) Thayer believed that judicial decisions that invalidated federal laws undermined public participation in the democratic political process. (8) Posner traced the rise of Thayerian judicial restraint through the jurisprudence of Oliver Wendell Holmes, Jr., Louis Brandeis, and Felix Frankfurter and the scholarship of Alexander Bickel. (9) Posner also identified its weaknesses; he rightly observed that Thayerians lack a normative theory for determining when judges should declare a statute (or executive action) to be unconstitutional. (10) And he identified judicial restraint's legacy that judges--by invoking Bickel's passive virtues of standing, mootness, ripeness, and the political question doctrine--can and do avoid constitutional questions. (11)

The Warren Court's liberal decisions are not the lone cause of death of judicial restraint. The development of legal theory also played a role. Indeed, judicial restraint's theoretical downfall can be attributed in part to former Supreme Court clerks who entered the legal academy, clerks including Posner himself.

During the 1960s and early 1970s, Warren Court and early Burger Court clerks entered the legal academy. They rejected legal process theory that they had learned in law school from Frankfurter proteges Henry Hart and Albert Sacks at Harvard, Alexander Bickel and Harry Wellington at Yale, and others. Instead, this new generation of law professors adopted competing theories and formed their own schools of legal thought. These new theories and schools of thought displaced legal process theory and eroded academic interest in judicial restraint.

My contribution to this panel on the constitutional contributions of the Warren Court and Burger Court traces the development of legal theory since the 1960s and argues that Posner and his fellow clerks-turned-academics moved the theoretical debate beyond process theory and judicial restraint. Many, but by no means all, of the important legal theorists of this generation were former law clerks. (12) In order to aid our understanding of this transformation, I have created a typology that places members of this upstart generation of law professors into one of five categories:

1. Rights Protectors (Warren Court true believers, rights as trumps, Ely's Democracy and Distrust);

2. Post-Realists (Critical Legal Studies, Critical Race Theory, and other theories that contend that doctrine does not account for judicial results, law is politics);

3. Law and Economics (liberal and conservative forms);

4. Originalists (which among this group of law clerks was an empty set); and

5. Judicial Restraint Holdouts.

These five typologies are intended as rough outlines and nonexclusive categories. Some, such as law and economics, apply more for private law than public law (especially constitutional law). During the course of his or her career, any single scholar could fall into one of several groups.

Legal process theory--the primary home for Thayerians of the 1950s and early 1960s--had fallen out of favor by the early-to-mid-1970s. (13) The Warren Court's most trenchant critics no longer ruled the academic roost. Instead, a new wave of clerks-turned-academics adopted new theories--rights protection, post-realism (Critical Legal Studies), law and economics, and (eventually) originalism--all of which supplanted process theory. With these new theories in ascendancy and legal process theory in decline, judicial restraint yielded to an uninterrupted era of judicial supremacy.

The story, however, does not end there. Another generation of Supreme Court clerks, at the end of the Burger Court, became law professors. Some came to distrust the Court as a rights protector, believing that the Justices were nothing more than politicians in robes, and thus rejected judicial supremacy. (14) Joined by some older Warren and Burger Court clerks in the academy, they advanced more democratic theories of judicial review, including popular constitutionalism. (15) Democratic constitutional theory, advocated by Larry Kramer, Robert Post, Pam Karlan, and others, began to look a lot like legal process theory of the 1950s and 1960s. (16)

The death of judicial restraint was like an academic popularity contest in which legal process theory was no longer trendy and hip. The young cool kids in the academy, many of them former Warren and Burger Court clerks, adopted new ideas and transformed legal theory. Part I explains the ascendancy of legal process theory during the 1950s and early 1960s and its relationship to judicial restraint. Part II explores the rejection of legal process theory by Warren Court and Burger Court clerks who became law professors, classifies these professors based on five typologies, and explains each typology and its leading adherents. Part III suggests a possible revival of legal process theory as the last generation of Burger Court clerks joined the academy and became disenchanted with judicial supremacy.

1. JUDICIAL RESTRAINT'S HOME BASE: LEGAL PROCESS THEORY

   Scholarly advocates for judicial restraint found a home in legal process theory. The 1950s and early 1960s were legal process theory's heyday. Espoused in different forms by Henry Hart and Al Sacks at Harvard, Alexander Bickel and Harry Wellington at Yale, and Herbert Wechsler at Columbia, process theory sought "reasoned elaboration" from judges, (17) "neutral principles" from judicial decisions, (18) use of "passive virtues" by the Supreme Court, (19) and the understanding of institutional interrelationships among courts, legislatures, and administrative agencies. These law professors grappled with the implications of Brown v. Board of Education, criticized the Warren Court's judicial supremacy, and promulgated their ideas in Harvard Law Review forewords. (20) They taught influential courses on the legal process at Harvard and Yale, courses that emphasized fair and democratic procedures over results. (21) John Henry Schlegel wrote of the up-and-coming Yale law faculty: "All were various species of legal-process-oriented liberals for whom Brown v. Board of Education (1954) was rightly decided; McCarthyism was detested, but anticommunism, essential; and, except for [Dean Eugene] Rostow, the Vietnam War was to be righteously opposed." (22) Above all, process theorists coalesced around fair procedures, the power of reasoned elaboration, and the Court's limited institutional competence.

   The patron saints of legal process theory on the Warren Court were Felix Frankfurter and John M. Harlan II. Process theorists extolled Frankfurter's and Harlan's opinions in law review articles. (23) To their students at Harvard, Yale, and elsewhere, process theorists employed Frankfurter and Harlan as exemplars of how the Court should decide cases.

   Frankfurter's connection to leading process theorists ran deep. Indeed, scholars often associate him with process theory. (24) It is inaccurate, however, to attribute the theory to him. He is best described as "one of the [theory's] godparents." (25) He never promulgated process theory the way that Scalia promotes originalism, (26) though Frankfurter certainly encouraged his former students and law clerks leading the charge. (27) Frankfurter's fingerprints on process theory were everywhere. Hart was his star student and co-author; (28) Bickel, Sacks, and Wellington were his law clerks; (29) and Wechsler was one of his admirers. Indeed, Hart and Wechsler dedicated the first edition of The Federal Courts and Federal System to "Felix Frankfurter who first opened our minds to these problems." (30) As William Wiecek...