Why Liberals and Conservatives Flipped on Judicial Restraint: Judicial Review in the Cycles of Constitutional Time

Abstract

Over the course of a little more than a century, American liberals (or, in an earlier period, progressives) and conservatives have switched positions on judicial review, judicial restraint, and the role of the federal courts-not once, but twice.'

At the beginning of the twentieth century, progressives grew increasingly skeptical of judicial review, while conservatives embraced judicial review to limit federal and state regulation and protect property rights. After the New Deal, these positions gradually flipped. By midcentury, liberals in both parties had begun to defend strong courts and judicial review, while conservatives began to denounce judicial activism and preach judicial restraint.'

But this arrangement, too, slowly reversed itself. By the first decade of the twenty-first century, liberals-who were now almost all Democrats-had become deeply concerned about how conservative majorities on the Rehnquist and Roberts Courts used judicial review. They attacked judicial supremacy and increasingly argued for judicial restraint.' Conversely, conservatives-who were by now almost all Republicans-emphasized the importance of courts in protecting federalism, religious liberty, and other important conservative constitutional values.' Some conservatives, in fact, have recently called for "judicial engagement" to protect important constitutional structures and rights, including economic rights.'