The Former Clerks Who Nearly Killed Judicial Restraint

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. …