As the Supreme Court's term came to a close in 1992, conservatives could hardly believe it. On June 24, a Court stocked with eight justices appointed by Republican presidents ruled that school prayer remained unconstitutional.Footnote 1 Conservatives were “sickened” by the opinion, one that upheld liberal Warren Court rulings from the 1960s.Footnote 2 Five days later, they were devastated. The Court handed down Planned Parenthood v. Casey, a case that saw Reagan, Bush, Nixon, and Ford appointees join forces to save the core of Roe v. Wade. Twelve years in, the Reagan revolution had failed to reorder the Supreme Court. One cut to the quick: “let us hear no more about the court's being ‘conservative,’” the “Reagan/Bush Supreme Court is decidedly not conservative.”Footnote 3
Fast forward 30 years. The presidency and control of Congress have toggled back and forth between the two parties. There are now six justices appointed by Republican presidents. Yet these justices are far more reliably conservative than their predecessors. Just in the past 5 years, this cohort of Republican justices has finally overturned Roe v. Wade, strengthened religious liberty rights, and held affirmative action in higher education unconstitutional—to skim only the surface.Footnote 4 When President Trump and conservatives attack the Court (often singling out Justice Amy Coney Barrett for particular opprobrium), it is for taking positions that 1990s conservatives would have considered a good deal preferable to the status quo.Footnote 5
Regime theory, the predominant historical-institutionalist framework in the law and courts subfield, struggles to explain this consequential development in Supreme Court politics.Footnote 6 For regime theorists, the outcome of interest—Supreme Court policymaking—is best understood as part and parcel of presidents and political parties. The justices are part of a “dominant national coalition,” that is, a regime, and they write into law the legal policy preferences of party leaders, particularly the “presidential wing” of their associated party.Footnote 7 Given this electoral connection, the Court is essentially “a majoritarian institution,” one with democratic imprimatur—thus, it should rarely be out of step with the regime's policy preferences, of which the justices are the judicial reflection, and even then not for long.Footnote 8
Bracketing the question of the Rehnquist and Roberts Courts’ democratic bona fides, it is hard to identify a presidents-and-parties based regime of the past 30 years, a dominant national coalition that the current Republican justices are serving. The past three decades of American politics have been marked by deep polarization and back-and-forth control of the two institutional paths to the Court (the presidency and the Senate). There has been no regime even as the Court finally became majority conservative (rather than simply Republican) during President Trump's first term. Put differently, even as the past two decades have seen each justice's ideological valence fully and finally align with the president who nominated them—regime theory's central assumption—a dominant national coalition or regime they are clearly serving has dissipated.Footnote 9 In light of these developments, prominent regime theorists have questioned their framework's ability to explain Supreme Court politics. One notes that “lessons learned over the course of American constitutional history” are “not play[ing] out in the same way” in an “era of severe party polarization.”Footnote 10 Another highlights that the Reagan “regime” inaugurated in 1980 “has been increasingly unable to win national Presidential majorities since 1992.”Footnote 11 And the founder of modern regime theory concedes that “regime theory paint[s] a poor picture of constitutional politics during the late twentieth century and the first decades of the twenty-first century.”Footnote 12 Beyond presidents and parties—beyond, that is, electoral competition—other factors seem to be driving this consequential rightward shift in Supreme Court politics. To better understand what drove the slow-boil conservative capture of the Court, we need to push past explanations that foreground electoral regimes.
Building on prior scholarly critiques of regime theory, this paper argues that its predominant strand—call it the presidents-and-parties framework (PPF)—needs significant revamping and updating.Footnote 13 The PPF depicts the justices as agents of the dominant national coalition; they are vessels for legal policy preferences of same-party elected elites, above all the “presidential wing” of the coalition. The empirical claim here is that regime theory struggles to explain not only the past generation of Supreme Court politics, but much of its development from the New Deal forward. If, for example, FDR's New Deal regime set the template for the Democratic justices’ policymaking, it is unclear why legal liberalism swiftly splintered into two competing orientations in the 1940s. PPF has a further difficulty: explaining why a Republican president, Dwight Eisenhower, appointed two of the most liberal justices of the twentieth century (Earl Warren and William Brennan), and two others whom liberals saw as improvements over their Democratic predecessors. As delineated below, the former were not, as many regime theorists claim, Eisenhower's “mistakes,” nor were the latter moderate conservatives. More broadly, Eisenhower's administration was moderately liberal, including on civil rights—whereas a counterfactual President Adlai Stevenson would have insisted on keeping Southern Democrats in the New Deal regime, thus cabining his nominees’ racial liberalism. Regime theory also struggles to explain Nixon's and Ford's presidencies, most of their Supreme Court appointments, and the overall constitutional politics and public law of the 1970s. And as sketched above and detailed below, even the Reagan regime—what should be a most-likely case for the theory—often does not fit comfortably with the development of American law and politics after 1980.
A second goal of this paper is concept formation. Drawing on Rogers Smith and Desmond King's work alongside Hans Noel's scholarship, the paper sets forth a typology of the modern justices as the institutional leaders of jurisprudential policy alliances.Footnote 14 Rather than looking to presidents and parties to gauge a given justice's (or Court's) politics, this approach focuses on how a jurisprudential policy alliance constructs—and, critically, then evolves—direct claims on what the Constitution means and the consequent nature and scope of public law.Footnote 15 As important is the following scope condition: jurisprudential policy alliances are a modern phenomenon kicking off with the Progressives and then responded to by constitutional conservatives.Footnote 16 Rather than the modern justices being primarily conceived as party actors—for example, judicial agents, mediating intra-coalitional disputes, or disciplining national “outliers”Footnote 17—we have good reason to expect that those selected for the Supreme Court care most deeply about public law policy as a distinct set of concerns that are often orthogonal to party politics, whether a presidential faction or otherwise.Footnote 18 A corollary of this conceptual development is that the justices have significant, if no doubt bounded, agency to (re)construct constitutional law according to their worldviews—they do not take their cues first and foremost from aligned party leaders.Footnote 19 In brief, jurisprudential policy alliances “carry” and then embed the tenets on the Court as an “institutional order.”Footnote 20
Leveraging untapped archival materials and overlooked primary sources throughout, this paper proceeds as follows.Footnote 21 The first section details the precepts of regime theory with a focus on PPF. The following section articulates a typology of the three most prominent jurisprudential policy alliances that have manifested on the Court over the past century: living constitutionalism, constitutional conservatism, and an orientation we can call incrementalism. As detailed, these policy alliances are ideal types, not meant to capture every permutation under their conceptual umbrella. This section also sets forth a measurement strategy. The next four sections form the paper's empirical core. After sketching the policy alliances’ emergence from the Progressives to the New Deal, these sections test regime theory from FDR to George W. Bush while also subjecting jurisprudential policy alliances to a “proof-of-concept” feasibility test. (It is worth emphasizing here that to keep the narrative moving, some footnotes contain pertinent contextualizing information.) The findings are stark: even coding regime theory's predictions generously, this framework correctly predicts only 16 of 35 confirmations from 1937 to 2006. The jurisprudential policy alliances approach correctly predicts the justices’ orientation on the Court 30 times across 35 confirmations (see Table 1). The final section is an analytic discussion that summarizes the limitations of the dominant strain of regime theory and suggests a revamped political development approach to Supreme Court politics, one that places the justices at the center. In that spirit, the conclusion calls for a new, collective endeavor by American political development (APD) scholars: to emphasize our methodological comparative advantage—archival data—and to theory-build in this area. The hope is that the approach set forth here clears the ground for testing a variety of frameworks that promise to throw into sharper relief the past and present of American public law.
The Two Frameworks’ Predictions and the Justices’ Orientations on the Court, 1937–2006
Table 1 Long description
Rows list individual justices confirmed from 1937 to 2006, with columns for President and party, PPF Prediction, JPA Prediction, Orientation on the Court, and Prediction Borne Out. The summary row reports predictions borne out as PPF 16 out of 35 and JPA 30 out of 35, with JPA also shown as 30 out of 33 conditional. For Franklin D. Roosevelt appointees, PPF is usually Liberal while JPA varies between Living Const. and Incrementalist; outcomes marked Both include Black, Douglas, Murphy, Stone as chief justice, and Rutledge, while several others are marked JPA, and Byrnes is marked Excluded with an asterisk marker. Under Truman, Burton and Clark are marked JPA, Vinson as chief justice is marked Neither with JPA listed as No prediction, and Minton is marked Neither with Orientation on the Court listed as Incrementalist. Under Eisenhower, Warren as chief justice is marked JPA with Orientation on the Court listed as Living Const., Harlan and Stewart are marked JPA with Incrementalist orientations, Brennan is marked Neither with JPA listed as No prediction, and Whittaker is marked Excluded with an asterisk markers. From Nixon through George W. Bush, several Republican appointees are marked Both when JPA and Orientation on the Court match Const. Conserv., including Rehnquist, Rehnquist as chief justice, Scalia, Thomas, Roberts as chief justice, and Alito; Burger as chief justice and Kennedy are marked Neither with Orientation on the Court listed as Mixed Approach. Clinton appointees Ginsburg and Breyer are marked Both with Living Const. listed for both JPA Prediction and Orientation on the Court.
Notes: PPF = presidents-and-parties framework; JPA = jurisprudential policy alliances; Living Const. = living constitutionalism; Const. Conserv. = constitutional conservatism; CJ = chief justice. The unit of analysis is a Senate confirmation to the Supreme Court between 1937 and 2006. There were 37 such confirmations—excluding the two (*) yields N = 35. Given his service as associate and chief justice, Rehnquist is scored twice, once for each confirmation. Stone appears once because only his 1941 elevation to chief justice falls within the time period under investigation. The three coded columns were constructed following these decision rules.
PPF Prediction Decision Rules. The presidents-and-parties framework predicts that a justice will “mirror the beliefs of the presidential or elite wing of the dominant national coalition.” Graber, “The Nonmajoritarian Difficulty,” 39. See also Gillman, “Party Politics and Constitutional Change,” 138 (how the justices vote “is the expression and vindication of those political views deliberately ‘planted’ on courts by the policy-conscious presidents and senators”); Balkin and Levinson, “The Processes of Constitutional Change,” 489–535, 490 (“Presidents appoint judges and Justices to the federal judiciary who are thought to share the broad political agenda of the political party led by the President”). The PPF predictions are thus based on what the regime theory framework claims justices will do on the Court. In line with regime theory's scholarship, I code Eisenhower's justices not as conservatives but as moderate conservatives for PPF. This decision is also based on regime theory scholarship. See Balkin, “Why Liberals and Conservatives Have Flipped,” 225 (expecting “opposition presidents” like Eisenhower and Clinton “not to appoint strongly ideological representatives of their parties’ positions”); Gillman, “Party Politics and Constitutional Change,” 145, 158 (“Stewart was a moderate Republican” and “it is unlikely that liberal constitutionalism would have emerged” without JFK and LBJ's “efforts”). Put differently, a moderate conservative prediction would be borne out by a justice whose orientation on the Court was closer to constitutional conservatism than living constitutionalism; none of Eisenhower's four (scored) justices did. This same generosity extends to Clinton's two appointees: each is coded as a correct PPF prediction even though regime theory predicts moderately liberal justices from an “opposition” president. Breyer's jurisprudence is arguably a moderate liberalism; Ginsburg was a liberal through and through. Overall, then, PPF predictions are scored as generously as possible while keeping the frameworks’ categories commensurable. Otherwise, the justices are coded as liberal or conservative according to regime theory scholarship's predictions. See Balkin and Levinson, “Understanding the Constitutional Revolution,” 1071; Peretti, Partisan Supremacy, 9–33; Balkin and Levinson, “The Processes of Constitutional Change,” 492. In sum, a PPF prediction is scored as borne out when “Liberal” corresponds to a living constitutionalist orientation on the Court and “Conservative” to a constitutional conservative orientation; incrementalism, a moderate liberalism, satisfies neither.
JPA Prediction Decision Rules. These predictions are coded from pre-nomination materials under the measurement strategy delineated above. In short, the decision rule privileges the materials in the following order: (1) the nominee's pre-nomination writings, speeches, and judicial opinions; (2) if those are unavailable, confirmation testimony; (3) if both are unavailable, the identity and stated grounds of the nominee's most vocal opponents (used only before 1987, when post-Bork opposition to every nominee became routine). The prediction is fixed before—and is thus independent of—the coding of the justice's orientation on the Court. The following sections apply these decision rules to each confirmation in turn.
Orientation on the Court. This column was coded based on the justice's votes and opinions in high-salience constitutional cases, the extrajudicial statements and writings post-confirmation (much of which is cited in the text), and the scholarly consensus among political scientists and constitutional law professors. See the Appendix for the cases and scholarly sources used for each justice's coding.
Robustness. PPF has no incrementalist category. One might therefore object that the JPA framework penalizes PPF for a category it never used, and that a Democratic-appointed incrementalist should count as a liberal, making regime theory directionally correct in those cases. Setting to the side that regime theorists reject this non-binary thinking (for example, classifying Frankfurter as one of the “most conservative Democratic appointees,” see Balkin and Levinson, “The Processes of Constitutional Change,” 492), applying this lenient coding decision rule raises PPF's hit rate to 24/35 (69 percent). Applying this same leniency to JPA flips one case (Minton) and raises it to 31/35 (89 percent). But the remaining PPF misses are telling: they are all Republican “mistakes” between 1953 and 1990. That is, PPF misses are at the level of its own theoretical framework: parties and presidents. The four JPA misses are of a different kind: in two (Vinson and Brennan) the pre-confirmation evidence runs out, and in two (Burger and Kennedy) the justices' records on the Court were mixed such that they do not fit cleanly into the orientations.
* Byrnes is excluded from scoring because he resigned after 15 months to direct wartime mobilization, thus leaving too thin a judicial record to classify. Given Byrnes's subsequent conservatism (e.g. opposition to Brown), this exclusion benefits PPF's tally. Whittaker, who suffered from mental health issues and resigned from the Court after only five terms, does not (in my estimation) have a discernible jurisprudential orientation.
† Where the pre-nomination evidence was insufficient to ground a prediction—Vinson and Brennan (discussed below)—no JPA prediction is recorded. These cases are nonetheless scored as JPA failures. Conditional on a prediction being made, JPA is borne out in thirty of thirty-three cases, a 91 percent prediction hit rate.
1. Regime theory, presidents, and parties
Regime theory grew out of two opposed streams of thinking that appeared in legal scholarship and political science in the 1950s and ’60s: academic lawyers’ anxiety about the Warren Court's aggressive judicial review vis-à-vis political scientists’ majoritarian view. That is, in these years, political scientists began to question why legal academics were so concerned about the “counter-majoritarian difficulty”—the need to justify the unelected justices striking down the public law of the elected branches.Footnote 22 Building on Robert Dahl's influential 1957 article arguing that the Court was part of the “dominant governing [coalition],” supplementing Martin Shapiro's showing that the Court makes legal policy (“political jurisprudence”), and leaning on Walter Dean Burnham's theory of “critical” or realigning elections, Mark Graber's classic 1993 article laid the foundation for what would come to be called regime theory, particularly the PPF approach.Footnote 23 Leveraging the counter-majoritarian difficulty as a foil, Graber's core claim was that the Supreme Court is essentially a majoritarian institution that exercises power “only when the dominant national coalition is unable or unwilling to settle some public dispute.”Footnote 24
The justices and their “policymaking,” Graber theorized, “should normally mirror the beliefs of the presidential or elite wing of the dominant national coalition”—the justices “assist” the dominant national coalition; its “wishes often become the justices’ commands.”Footnote 25 As the most extensive effort to theorize regime theory puts it: “the regime politics paradigm” starts “with the assumption that the Supreme Court is part of, and rarely deviates from, the dominant majority coalition.”Footnote 26 Or, as another key PPF article argues, the justices should be understood as “temporally extended representatives of particular parties, and hence, of popular understandings about public policy and the Constitution.”Footnote 27 One leading regime theorist, quoting another regime theorist, analyzes the Court this way: how the justices vote “is the expression and vindication of those political views deliberately ‘planted’ on courts by the policy-conscious presidents and senators.”Footnote 28 This was and remains the pith of the dominant strain of regime theory, which is in turn the predominant historical-institutionalist framework in the law and courts literature.Footnote 29
As it developed over the 1990s and into the 2000s, regime theory was also deeply influenced by Stephen Skowronek's work on regimes and, even more so, his theory of presidents and their reconstruction of, or location in, “political time.”Footnote 30 As reconfigured by regime theorists, their framework viewed the electoral consolidations of Skowronek's “reconstructive” presidents as heralding an era of judicial entrenchment that later breaks down and is replaced by a new president-led regime.Footnote 31 As a result, PPF still more explicitly privileged the “presidential wing” of the dominant coalition as the best predictor of regime-affiliated justices’ constitutional politics.Footnote 32 One effort to systematize regime theory put it: “the phrase often repeated by the regime politics literature is that the Supreme Court advances the preferences of the ‘presidential wing.’”Footnote 33
Most, if not all, regime theory scholarship analyzes constitutional politics from the New Deal forward: FDR's New Deal reconstruction and Reagan's conservative regime. Regime theory conceptualizes the Democratic Party, its presidents, and their justices from FDR forward as essentially liberal, a New Deal-cum-Great Society liberal regime.Footnote 34 By that same measure, those presidents “affiliated” with the regime—for example, Truman and JFK—will appoint “affiliated justices” who will “implement” the reconstructive president's “constitutional vision.”Footnote 35 Regime theory expects “opposition presidents,” like Eisenhower and Clinton, “not to appoint strongly ideological representatives of their parties’ positions.”Footnote 36 The Republican Party, its presidents, and justices are depicted as conservative—from Eisenhower's moderate conservatism to Nixon's Southern Strategy and “New Right regime,” and Reagan's full-bore conservatism.Footnote 37
As a theoretical framework, regime theory is elegant. At first blush, it seems manifestly correct: the Court was mostly liberal from the second New Deal to 1980, and it did become more conservative after Reagan's election. And it promised an analytical richness that quantitative approaches cannot provide. At least in theory, a comparative advantage of regime theory was its excavation of the Court's most high-profile cases, where it made significant policy in contrast with amassing the justices’ votes and dispositions in all the non-unanimous merits cases (as quantitative judicial vote scores do). As regime theorists persuasively argued, quantitative vote scores produce thin accounts of the justices’ politics and policymaking or simply restate an unremarkable claim (policy preferences affect legal outcomes), something that scholars have understood since Progressives forged the modern social science disciplines.Footnote 38
But the contours of a given regime and how exactly the justices are part of it remain hazy. Regime theory scholarship “codes” or analyzes the Court's and various justices’ public law commitments post hoc. The justices are variously conceived of as in alignment with the “presidential wing,” but at other times the “legislative wing.” Or the Court's majority is working with a “dominant national coalition” (at times, a bipartisan coalition) that disciplines “regional” outliers (like the Warren Court with respect to the South). Sometimes the justices are theorized as acting in concert with various “groups,” sometimes “moderates”—regime theorists at times even rely on quantitative models to explain a justice's politics.Footnote 39 As the one regime theorist who has done the most work since Graber's classic piece to flesh out the tenets of regime theory admitted: “a concept as amorphous as ‘the regime’ is admittedly tough to nail down.”Footnote 40 One regime theorist has abandoned the framework in favor of “constitutional regimes,” a concept that is difficult to derive testable hypotheses from.Footnote 41 Or, as another PPF regime theorist recently put it: “The regime politics model is not, of course, without its weaknesses. It remains undertheorized, insufficiently tested, and incapable of explaining the specific doctrinal choices that the Court makes, including some that the regime would oppose.”Footnote 42 Finally, in that same vein, a leading regime theorist exhorted regime theorists to “develop more focused arguments about why this framework is better than others at explaining judicial politics; they will also need to defend against the suspicion that any court action might be interpreted, post hoc, as reflecting some political advantage to governing coalitions.”Footnote 43
As the empirics below show, regime theory often obscures what the justices on the modern Supreme Court self-consciously see as their job. That is, what is critically missing from PPF's focus on presidents and parties is how the justices think of their fundamental task: interpreting the Constitution alongside their notions of the nature and scope of public law.Footnote 44 If we want to better understand the politics of Supreme Court decision-making, we need to pay more careful attention to the justices’ worldviews. Party ideologies have been fluid since the New Deal, but jurisprudential policy alliances are more durable, if malleable, markers across time. And we have good theoretical reasons to expect that these worldviews are a better predictor of the justices’ constitutional politics and public law preferences than presidential and party politics.
2. Jurisprudential policy alliances and institutional orders: concept formation and measurement strategy
“I am and always have been a conservative,” an up-and-coming lawyer declared in his 1985 Department of Justice job application. Cutting his teeth on “the writing of William F. Buckley” and “National Review,” Samuel Alito continued, “in college, I developed a deep interest in constitutional law, motivated in large part by disagreement with Warren Court decisions.” Adding that he was a member of the Federalist Society, Alito highlighted his work at the Office of the Solicitor General. In that role, he argued “the Constitution does not protect a right to an abortion” and that “racial and ethnic quotas” violated the Fourteenth Amendment.Footnote 45 No one had to guess what Alito's political priors were, and the contents of his public law worldview were little mystery.
That is, Alito's policy alliance and how it was likely to embed itself on the Court via his opinions and votes were strongly signaled: he was first and foremost a conservative motivated by his constitutional beliefs, and a Republican second. As noted above, a jurisprudential policy alliance devises a clear claim on the Constitution's meaning and the nature and scope of public law. That is, a policy alliance sets out to rewire what is constitutional common sense or, at least, what are politically plausible claims on the content of constitutional law—then embed this understanding on the Court as a public law iteration of what King and Smith call an “institutional order.”Footnote 46 Emerging before the modern party system, jurisprudential policy alliances are not primarily concerned with furthering partisan goals but make a more fundamental claim grounded in (re)defining American constitutionalism and public law via first principles.Footnote 47 First built by political actors, these alliances are taken up, refined, and, at times, extended by aligned legal elites—for example, legal academics, activist-lawyers, legal interest groups—and reworked into theories of constitutional and public law for the justices to use in making (or blocking) new policy. Jurisprudential policy alliances are “carriers” of potential institutional orders unless and until they embed in the form of sustained Supreme Court majorities.Footnote 48
This approach builds on and extends Hans Noel's work on the distinct developments of political ideologies and political parties. We can understand the elite political actors who make up jurisprudential policy alliances as an iteration of what Noel calls “coalition merchants”—the public intellectuals, academics, judges, and activists who specialize in public law.Footnote 49 As with Noel's ideologues (coalition merchants), these constitutional specialists seek to define what their policy alliance stands for well before it becomes associated with one of the two major parties. With regard to public law, these actors’ goal is institutional capture—for them, the Supreme Court and its judicial mandates are the prize. And as with all-purpose coalition merchants, their public law compatriots view parties as simply a vehicle, a means to the end of governing authority.Footnote 50 Put differently, parties matter, but they are not the fundamental institutional variable that regime theory claims.
So, when a jurisprudential policy alliance and its coalition merchants secure durable representation on the Court through the appointment of policy-aligned justices, it creates an institutional order—living constitutionalism and constitutional conservatism being the paradigmatic modern examples. An institutional order is a stable but evolving configuration of constitutional and public law understandings that leverage these interpretive commitments (“theories”) that aligned justices use, quite sincerely, to justify policymaking by the Court. These theories and public law claims are embodied by justices, entrenched via opinions and agenda-setting, and reproduced through the hiring of clerks who go on to work in elite legal institutions, especially legal academia. As shown below, strong and weak forms of living constitutionalism were so entrenched by its policy alliance that it was a cross-partisan principle throughout the post–World War II era. In short, jurisprudential policy alliances, once institutionalized, generate preferred public law via a logic that is sometimes at odds with the interests of the presidents and parties that ostensibly placed them there (especially prior to late-twentieth-century party sorting and polarization). Finally, an institutional order does not, of course, eliminate disagreement within an order—there are varieties of constitutional conservatism and various preference intensities among liberal and progressive justices. But given their deep connection to ideas about public law, their primary external referent is not political parties, but political ideologies—commitments that generally hold allies together in precisely the cases that end up on the front page of the New York Times the next day.Footnote 51
The first modern jurisprudential policy alliance to appear was living constitutionalism. Living constitutionalism was the public law offshoot of William James's and John Dewey's (among others) pragmatism—a philosophy flowering at the turn of the twentieth century and powering the emergent Progressivism.Footnote 52 With adherents in both political parties, the fundamental claim of living constitutionalists was that public law was contingent, always capable of being updated, and forward-looking. Living constitutionalism welcomed the modern social sciences and rejected the notion that judges must be restricted to the traditional toolkit of the lawyer or bounded by historical understandings of constitutional limitations.Footnote 53 For the Progressives who constructed it, that the Constitution and public law evolved rather than being fixed in place was tantamount to an empirical claim—this was simply the way the social and economic world, to say nothing of the law, worked.Footnote 54 Upon embedding on the Court in the 1940s, one strand of this alliance evolved into a normative institutional order as a subset of FDR's living constitutionalist justices—a vanguard—seized the initiative. This prescriptive living constitutionalism saw the Constitution and the Court's role more in moral (rather than empirical) terms as they created new rights for sympathetic individuals and groups. The Warren Court famously extended this vanguard's project via the “rights revolution.”Footnote 55 Since the Warren Court, the justices have not done much to innovate living constitutionalism theoretically.Footnote 56
Constitutional conservatism is living constitutionalism's mirror image. Thus, it emerged in direct response to living constitutionalism in the 1920s.Footnote 57 With adherents in both parties as well, the bedrock claim of constitutional conservatives was and is that the governing framework and public law are fixed in place. The baseline for constitutional knowledge and the document's proper interpretation is the founding era and the Framers’ timeless political thinking, their “original meaning” (even if this analysis is often ahistorical).Footnote 58 As a policy alliance, constitutional conservatives are instinctively opposed to expansive congressional, judicial, and bureaucratic public law that runs up against (their understanding of) the original design for the governing framework's structures.Footnote 59 As one of its most influential champions put it in 1986, “You see, quite often fundamental constitutional principles prove to be stumbling blocks to the many groups always pushing for different policies and programs.”Footnote 60 Especially in the wake of the 1960s and 1970s rights revolution, constitutional conservatives called on the justices to negate liberal public law or, failing that, treat “original” rights (e.g. religious liberty) as on par with those later created (e.g. civil and gay rights).Footnote 61 Over the twentieth century, this jurisprudential policy alliance slowly evolved into a theory—originalism. Originalism served as both a theory and “political practice” that distilled a clear set of conservative, not simply Republican, political commitments.Footnote 62 While it was first embedded in Reagan's Department of Justice as an institutional order, originalism—and the broader conservative legal movement it served as the ideological glue for—was developed by and for conservatives rather than the Republican Party qua party.Footnote 63
As shown below, from Eisenhower to George H.W. Bush, the Republican Party and constitutional conservatism rarely overlapped at the presidential level. Only when conservatives fully took hold of the GOP in the 1990s did Republican presidents appoint conservative, rather than simply Republican, justices down the line. Put differently, many postwar GOP justices—for example, John M. Harlan, Potter Stewart, Sandra Day O'Connor, David Souter—manifested a third worldview: incrementalism.Footnote 64 Nascent in the first few decades of the twentieth century but emergent on the New Deal Court, incrementalism is in effect an anti-constitutional ideology. Incrementalism rejects sweeping claims on the Constitution and the nature of public law. Too often conflated with judicial restraint (and sometimes conservatism) on the bench, incrementalism is rather a type of legal liberalism: the judicial incrementalist accepts that the law evolves.Footnote 65 Unlike post-New Deal living constitutionalists, however, incrementalists emphasize what they see as judges’ cabined ability to make effective public policy. Rights revolutions and counter-revolutions are their antithesis. This alliance was fleshed out and led by Justice Felix Frankfurter and his law clerks who went into legal academia, especially Alexander Bickel.Footnote 66 Harvard Law School was its institutional home, and its canonical texts include(d) Hart and Sacks's The Legal Process (1958), Herbert Wechsler's “Toward Neutral Principles of Constitutional Law” (1959), and Bickel's The Least Dangerous Branch (1962). However, unlike its competitors to the right and the left, it never achieved status as an institutional order because it lacked a political constituency that would do sustained ideological battle for it.
That is, for incrementalists, the law has content independent of policy, ideology, and party politics. The traditional toolkit of the lawyer—for example, text, precedent, history, common law doctrines—serves as a guide for cautious policymaking as opposed to the large-scale policymaking goals that conservatives and progressives ask of their jurisprudential policy alliances. Given that incrementalists are technocrats—experts in law—these justices were more likely to be prevalent before the more ideological jurisprudential policy alliances infiltrated the parties. Further, because incrementalists are fundamentally small-p progressive—public law should develop common-law style—and products of elite law schools, they are predisposed toward a cabined political liberalism. Put differently, this was the jurisprudential “house ideology” of the postwar liberal Establishment that slowly lost out to the polarized constitutional alliances to their right and left in the 1980s and after.Footnote 67 So, as the ideological policy alliances gain more traction, we should expect to see incrementalists become unacceptable to constitutional conservatives, full stop, while also appearing insufficiently expansive for liberals. In short, though there were incrementalist texts by legal elites into the 1990s (e.g. Cass Sunstein, One Case at a Time (1999)), they did not have a widespread following. And as suggested above and shown below, its last two jurisprudential manifestations—Sandra Day O'Connor and David Souter—proved too little for latter-day progressives and too much for constitutional conservatives.
2.1. Measurement strategy
As a historical measure of a justice's predicted politics on the Supreme Court, a jurisprudential policy alliance approach looks first to a justice's pre-nomination writings and statements. Rather than the president's partisanship or the party ideology of the regime, a justice's pre-nomination speeches, writings, judicial opinions, and the like provide a direct line into their constitutional and public law orientation. This is an attachment we should expect to be “sticky.”Footnote 68 If a given justice's pre-confirmation archival material is the best source, post hoc oral histories and memoirs should be avoided for operationalization purposes as much as feasible. Often enough, these forms of evidence are not reliable barometers—they reimagine the past, consciously or not, in the interest of telling a linear story that squares with the present or how one wishes to be perceived, politically and personally.Footnote 69
There may not always be clear pre-nomination evidence. For example, Justice James C. McReynolds's papers and materials are sparse, Justice Owen Roberts destroyed his, and Justice David Souter's papers will not be available until 50 years from the date of his recent death. Where the archival materials run out or are unavailable, a jurisprudential policy alliance measurement strategy looks next to a nominee's confirmation testimony, evidence that can be more revealing than often supposed. Souter's confirmation testimony, for example, contained clear signals that he would be a moderate liberal—an incrementalist—something conservatives recognized during his hearings. In the absence of either, an alternative is to look at those governing elites, activists, and interest groups that most vocally oppose a nominee—they are incentivized to spot potential ideological enemies. This third-order evidence can be a more reliable indicator than the politics of a president (or presidential wing) and the associated regime. For example, regime theory would predict that President Reagan's nominees should be strong conservatives across the board.Footnote 70 However, his nomination of Sandra Day O'Connor—who, while a pragmatic Republican legislator, had said little jurisprudentially—brought immediate angst, even anger, from conservatives.Footnote 71 Based on their own research (overlooked by most media outlets), they accurately predicted that O'Connor might be a Republican, but she would not be a conservative on the bench. However, this third-order evidence is less useful post-1987, when Robert Bork's nomination spurred an explosion of interest group attention (after Bork there was widespread and vocal opposition to every nominee).Footnote 72
In short, as much as possible, this strategy privileges the direct measure of the nominee's own claims and statements as the most reliable predictor of their judicial politics. What's more, this locks the framework into a commitment prior to the coding and analysis. This is distinguishable from regime theory, which engages in post hoc narrative analysis.
The upshot of this measurement strategy squares with what we know about the justices. Of course, they are often identified to some extent with one party or the other. But it is unclear why we should expect the justices to think of themselves as primarily part of a partisan coalition, nor why scholars should privilege this conceptualization of them. Indeed, a range of non-regime theory scholarship directly and indirectly shows that the justices are professionalized to—and do—think about law as a form of politics separate and apart from partisan politics.Footnote 73 At the same time, as Gregory Elinson, Vanessa Baird, and Richard Pacelle (among others) have shown, the justices are agenda-setters who signal to litigants their policy interests and then self-consciously craft desirable public law.Footnote 74 So to fully appreciate the justices’ primary political animation, theorizing about Supreme Court politics should place their constitutional and public law worldviews front and center.
As Table 1 shows, the two frameworks’ predictions analyzed here diverge on sixteen of the thirty-three confirmations for which they both make a prediction. Of those sixteen confirmations, a jurisprudential policy alliance framework correctly predicts fourteen, while regime theory correctly predicts none. Tellingly, the last divergent prediction between the two frameworks is Souter's 1990 confirmation. From Thomas's confirmation the following year forward—the point at which the two major parties substantially absorbed the two major policy alliances (while incrementalism was on the wane)—the frameworks agree. However, this convergence appears right as the regime necessary to PPF is no longer dominant—that is, there is no longer a regime. Finally, while the jurisprudential policy alliance approach can explain both the divergence and subsequent convergence, regime theory has to reckon with a plethora of “mistakes” that presidents, particularly Republicans, ostensibly made.Footnote 75 This should be of concern for a theoretical framework that is grounded in presidents and parties. The balance of the paper aims to provide the requisite empirical ballast.Footnote 76
3. Jurisprudential policy alliances and the justices prior to the New Deal and the modern party system
If living constitutionalism as an empirical claim was developed primarily by Progressive public intellectuals and non-legal elites, some justices did manifest this evolving worldview before their confirmation. For all the attention to Justice Oliver Wendell Holmes as the epitome of Progressive constitutionalism, there are more salient examples.Footnote 77 Louis Brandeis and Benjamin Cardozo, placed on the Supreme Court by presidents from both parties (Woodrow Wilson and Herbert Hoover, respectively), exemplified living constitutionalism's initial iteration as an empirical claim.Footnote 78 As an attorney, Brandeis invoked “sociological jurisprudence” via the eponymous Brandeis Brief. Submitted in a 1908 Supreme Court case, the brief was almost entirely reliant on social and medical science. The brief, “by highlighting social and economic reality, suggested that the trouble with existing law was that it was out of touch with that reality.”Footnote 79 Brandeis also published a pre-confirmation law review article approvingly noting there had been a recent shift in judges’ thinking: they were paying more attention to “existing social needs” and the “facts of life.” The increased melding of law and legal education with “economics and sociology” pointed toward a less “static” law.Footnote 80 On the Court, Brandeis embodied living constitutionalism as an empirical claim and foreshadowed its normative turn, perhaps most saliently in his de facto dissent in Whitney v. California (1927), an early modern free speech case.Footnote 81
Influenced by pragmatism, Cardozo's pre-nomination writings presaged his tenure on the Court: the “great generalities of the constitution” evolved. Rejecting the finality of “the meaning and intent of the lawmakers,” and quoting an academic he admired, Cardozo's The Nature of the Judicial Process argued that legal “rules and principles” were not “final truths” but “working hypotheses” always subject to updating.Footnote 82 If Cardozo found the legal realists to be “priests of the new gospel of juridical salvation,” he was pleased they rejected the “petrifying rigidity” that marked premodern legal thinking.Footnote 83 In an unpublished opinion in Home Building and Loan Association v. Blaisdell (1934), Cardozo reinforced living constitutionalism as an empirical claim.Footnote 84 In those portions ultimately incorporated into the majority opinion, Cardozo argued that judges must not be blind to the “economic and social changes wrought by the industrial revolution”—changes that made it “necessary for government at this day to do a thousand things that were beyond the experience or the thought of a century ago.” The “process of [this] evolution was too strong to [be] set back.”Footnote 85 Another Republican-appointed justice, Harlan F. Stone, later elevated to chief justice by FDR, reinforced living constitutionalism as empiricism. As Columbia Law School's dean, Stone was interested in modernizing the law. The Supreme Court “ought not” be solely “absorbed in the technique of law.”Footnote 86 Instead, as Stone told the conservative American Bar Association early in his Supreme Court tenure, modern “social and economic conditions” informed by “reading and research in fields extra-legal” were now, or should be, the guide.Footnote 87 One of the “Three Musketeers” (with Brandeis and Cardozo) on the Court, during the Great Depression and First New Deal, Stone's concurrences and dissents took a pragmatic view of the economic emergency.Footnote 88
Rather than viewing themselves as happily in the midst of a conservative Lochner era, well before the New Deal, conservatives worried about the inroads of living constitutionalism on the Court and in the academy.Footnote 89 In 1920, former president and soon-to-be chief justice William Howard Taft warned fellow conservatives that “a new school of constitutional construction” might be working its way onto the Court via justices like Brandeis.Footnote 90 These living constitutionalists on and off the bench were treating the Constitution as “a mere scrap of paper.”Footnote 91 On the Court, Taft helped President Harding select new justices.Footnote 92 Reinforcing that jurisprudential policy alliances spanned political parties, Taft scouted for justices with “sound views”—that is, conservative ones—rather than simply touting Republicans.Footnote 93 The Democrat Pierce Butler, still a corporate lawyer but future anti-New Deal justice (one of the “Four Horsemen”), worried with the American Bar Association that “college and university professors” had “condemned” the Constitution as “archaic” because it blocked too many of their preferred policy reforms.Footnote 94 This constitutional conservatism, still loosely theorized, also marked the pre-nomination thinking of future Justice George Sutherland. A Harding nominee and another of the New Deal's judicial horsemen, he also worried about the “false teaching” taking place in the modern research university and law schools—the “framers of the Constitution” had set forth an “organic structure” whose “underlying principles” contained “enduring wisdom.”Footnote 95 If partisanship was not a strong predictor of these justices’ eventual judicial behavior, their invocations of a 30,000-foot jurisprudential policy alliance suggest the potential of incorporating this concept into an APD approach to Supreme Court politics.
Parallel to this, another future nominee suggested how incrementalism might appear on the Court. Capped by his acceptance of the New Deal in 1937, Charles Evans Hughes was a moderate progressive as a politician and in both of his stints on the Court.Footnote 96 Appointed as associate justice by Taft and reappointed as chief justice by Hoover (he left the Court to pursue elected politics), his constitutional politics were signaled by his pre-nomination thinking. In a 1907 speech to the Elmira (NY) Chamber of Commerce, he recognized realistically that “the Constitution is what the judges say it is,” but judges should not ignore the lessons of history.Footnote 97 In a series of lectures at Yale—“Conditions of Progress in Democratic Government”—published the same year he was confirmed to the Court (1910), Hughes's progressive moderation was apparent. Hughes was fully comfortable with the growing in fits-and-starts administrative state. His technocratic concern was to make it more efficient.Footnote 98
In sum, as the Great Depression gave way to FDR and the New Deal, the jurisprudential policy alliances that would cohere (or attempt to) as institutional orders on the Supreme Court appeared, though tangential to the party system and presidential politics. Living constitutionalism manifested, but mostly as an empirical claim that the law necessarily evolved. Constitutional conservatism looked back to a gauzy “intent” of the framers and their Constitution of 1787 while expressing skepticism of a law that evolved.Footnote 99 Via Hughes, incrementalism came into soft focus—insofar as it had coalition merchants, they were elite good-government reformers and Progressive Republicans.Footnote 100 But via FDR's appointees to the New Deal Court, living constitutionalism was about to evolve towards its full-on Warren Court manifestation while incrementalism's cautious liberalism took on jurisprudential form.Footnote 101
4. The New Deal Court and evolution of embedded institutional orders, 1937–1952
As is well known, via his nine appointments, FDR remade the Supreme Court after it capitulated to the New Deal via the Constitutional Revolution of 1937. As is also well known, FDR's first six nominations—Justices Hugo Black, Stanley Reed, Felix Frankfurter, William O. Douglas, Frank Murphy, and James Byrnes—were chosen based on their support for the New Deal rather than a judicial philosophy as such.Footnote 102 This party-first consideration set the stage for legal liberalism to fracture after 1937. Led by a vanguard of FDR's appointees and encouraged by liberal elites, living constitutionalism morphed from an empirical claim to a normatively charged institutional order. But it was also a subset of FDR's appointees who developed a mature incrementalism. This suggests the limitations of regime theory. A presidents-and-parties approach, where the justices-as-agents assist partisan elites with their legal policy goals and follow the constitutional politics of a reconstructive president, cannot capture these consequential developments. Nor, as the following shows, does it make much sense to view any of these justices as conservative—that orientation to the Constitution was marginalized for decades after 1937.
Spurred on by ascendant liberals (especially dozens of newly formed civil rights and civil liberties interest groups), Douglas and Black, stalwarts of the living constitution over the next two decades, were soon joined by FDR's Attorney General Frank Murphy.Footnote 103 In a 1939 speech publicized by the American Civil Liberties Union, Murphy spoke “In Defense of Democracy.”Footnote 104 For Murphy, the most salient feature of the Constitution was the “singular emphasis” on “personal liberty.” In fact, the Bill of Rights was really “expressing a philosophy of human living”—little wonder Charles Beard deemed it Murphy's “manifesto.”Footnote 105 FDR's former top lawyer presaged not only his confident liberalism on the Court but also living constitutionalism's increasingly normative valence. He saw his job on the Court as “espousing a ‘humanistic and humanitarian philosophy’” and “articulating the moral standards” the Constitution compelled.Footnote 106 This is identifiably different from the empirical pre-New Deal living constitutionalism.
Justice Black articulated this evolution in Chambers v. Florida (1940): “No higher duty, no more solemn responsibility, rests upon this Court than that of translating into living law and maintaining this constitutional shield deliberately planned and inscribed for the benefit of every human being subject to our Constitution—of whatever race, creed or persuasion.”Footnote 107 Liberal elites, overjoyed that the justices were making social policy they approved of, proclaimed that Black's opinion in Chambers “will ring with power as long as liberty and justice are cherished in our country.”Footnote 108 Harlan Stone, as associate and chief justice, also pointed up living constitutionalism's evolution.Footnote 109 In dissents by the soon-to-be chief justice—opinions that would shortly command a majority after outside pressure from liberal interest groups—the Constitution took on a spiritual form. Constitutional civil liberties were “but guaranties of the freedom of the human mind and spirit.” More than that, the Constitution was not just a framework for governing but “an expression of faith.”Footnote 110
On the heels of that, the living constitutionalists added another member, Wiley Rutledge, a former law school dean and DC Circuit Court of Appeals judge. Appointed to replace James Byrnes—who likely would have been a constitutional conservative had he served longer than 15 months on the Court—Rutledge's time on the appeals court foreshadowed his normatively charged living constitutionalism on the Supreme Court.Footnote 111 On the Court, as Justice Rutledge explained, “in the sense of the legally relevant standard, justice is and must be fluid. Likewise with the law.” If “the law finds itself at odds with the moral sense of the community,” that tempted “revolution.” Those judges and legislators who could “catch the vision” of the collective moral sense were, in turn, “worthy to give [the] people their laws or judgment.”Footnote 112
Over the course of the 1940s, the new living constitutionalism powered as many majority opinions as it could and appeared in dissent when it could not.Footnote 113 Liberals, if not all Democrats, cheered them on. It was time to move past “learned plea[s] for total abandonment of constitutional questions.” Of course, the Court should not be “a legislature”—but because it was “a law-making agency,” the justices should be “politically and socially alert.”Footnote 114 Charles Beard, in an about-face from his prior thinking, now had it that the framers were deeply interested in the “human rights” they “defined and wr[ote] down in the Constitution itself.”Footnote 115 (Justice Black read, cited, and admired Beard.)Footnote 116 Another liberal intellectual, Charles Merriam, argued that with the Court now an institution under liberal control, it should create new constitutional rights focused on “liberty—self-expression—the unfolding of the human personality” and “social justice.”Footnote 117 Encouraged and influenced by liberal interest groups and intellectuals, the vanguard on the New Deal Court was setting the stage for the Warren Court's social justice-infused living constitutionalism.Footnote 118
If this group of FDR's justices wanted the Court to lead, others, including some liberal legal academics, were less sure about that path in the wake of the Constitutional Revolution of 1937. Signaling the desire for a liberal incrementalism to appear, one scholar worried in the Michigan Law Review that the “newly reconstituted” Court forced law professors to wonder about “the true role of the Court in constitutional interpretation.”Footnote 119 While elite law professors struggled with “The Search for Objectivity in Constitutional Law” throughout the 1940s, Felix Frankfurter and Robert Jackson devised an answer via a mature incrementalism—here were coalition merchants-turned-justices at work from inside the Court.Footnote 120 Jackson, FDR's solicitor general and attorney general, reinforced the fracturing of legal liberalism. As attorney general, Jackson wrote a book arguing that, regarding economic policy, the judge should take a backseat to the legislator and administrator.Footnote 121 On the bench, Jackson joined Frankfurter in exemplifying incrementalism.Footnote 122 Along with Frankfurter, Jackson is at times misclassified as a conservative. These justices, however, are better understood as incrementalists, unsure that the Court was well-placed to make social policy via the Bill of Rights and the Fourteenth Amendment.
Frankfurter's incrementalism was predictable.Footnote 123 In his days as a Harvard law professor, Frankfurter noted that he was “excluded” from the legal realist “club” because he “care[d] too much about history.”Footnote 124 Frankfurter, in other words, took seriously the idea that law had substance independent of politics and preferences. This orientation already came through in 1922 after the Supreme Court struck down a federal tax on firms that employed child labor. “Humanity,” Frankfurter wrote in the New Republic, “is not the test of constitutionality.” Defending the Court's decision, he added, “We must pay a price for federalism.”Footnote 125 His approach also manifested the following year when Frankfurter critiqued a fellow progressive for emphasizing the “social” consequences of the Court's policymaking to the exclusion of the “legal question” at issue.Footnote 126 Shortly after joining the Court, Frankfurter was annoyed with “these evangelical lads”—the living constitutionalists—who insisted that what was just was constitutional.Footnote 127 Because of this orientation, Frankfurter was quickly coded by liberal elites and early judicial behaviorists as a “conservative” justice.Footnote 128 This says more about the predominance of liberalism than about Frankfurter's judicial behavior. He (and Jackson) allowed for the law to slowly evolve via a common law process, an orientation that runs up against how conservatives were just then fighting back against these constitutional developments.Footnote 129
In sum, by the dawn of the 1950s, FDR's and Truman's justices had splintered legal liberalism into rival judicial orientations.Footnote 130 This is a development regime theory cannot account for given its manifestation within New Deal liberalism—that is, within the party-based regime spawned by FDR. A normative living constitutionalism that aimed to make over public law and create new constitutional rights asserted itself. The living constitution vanguard's referent was not Democratic Party elites as such, but liberal interest groups, intellectual elites, and their own sense of constitutional mission. What regime theorists also gloss over—or, following judicial behaviorists’ coding conventions, classify as conservatism—is the other strand of legal liberalism: the incrementalism epitomized by Frankfurter and Jackson.Footnote 131 If constitutional conservatism often had its say on the Court in the 1920s and ’30s, conservatives had no voice on the Supreme Court for decades after 1941.Footnote 132 Simply put, legal liberalism, via the living constitutionalists and incrementalists who soon occupied nearly every seat on the Court, was dominant. These justices were not simply assisting the New Deal regime inaugurated by FDR and extended by Truman. These justices were charting divergent liberal legal policymaking paths—one cautious, the other sure of its legal policymaking know-how.
5. Presidents, parties, and jurisprudential policy alliances, 1953–1980
A Republican president, Dwight D. Eisenhower, appointed two of the twentieth century's most liberal justices, Earl Warren and William Brennan. Regime theorists attribute this to Eisenhower's “mistakes” in judgment—often accompanied by a claim that his administration was a laggard on, or a reluctant advocate of, civil rights—because his appointments run up against their theoretical claims.Footnote 133 Regime theorists are mistaken. The archival and primary sources cast significant doubt on these claims while suggesting the empirical leverage a jurisprudential policy alliance approach provides.
Warren was vocally and publicly liberal prior to his nomination. A progressive since his 1920s entry into California politics, Warren championed liberalism throughout the 1940s. When he addressed Republican audiences, he exhorted them to embrace modern liberalism.Footnote 134 When the New York Times asked a variety of governing elites and intellectuals, “What is Liberalism?” Warren answered by dividing the world into “three groups—reactionary, progressive, and radical.” He was a “progressive,” while many “conservatives are in fact reactionaries.” Also presaging his unapologetic progressivism on the Court, Warren highlighted his concern with “the welfare of others” and the “changed conditions of human need.” What's more, Warren identified “[c]ivil rights, representative government, and equality of opportunity” as areas of concern pre-confirmation.Footnote 135 This was not moderate Republicanism, to say nothing of moderate conservatism.
More than that, despite the oft-repeated quote, there is no good evidence that Eisenhower ever said Warren and Brennan were his two biggest presidential “mistakes.”Footnote 136 Beyond Warren's public advocacy, Eisenhower was well aware of his nominee's views. In an October 1953 letter to his brother Milton, Eisenhower dismissed conservatives who were opposed to Warren's nomination. Warren, he wrote, was “definitely a liberal-conservative; he represents the kind of political, economic, and social thinking that I believe we need on the Supreme Court.”Footnote 137 Indeed, Eisenhower described Warren to a close friend as “a man whose philosophy of government was something along the lines of my own.”Footnote 138 As the president saw it, Warren brought “statesmanship” to the Court, a philosophy informed by the “hard knocks of personal experience, private and public.” Eisenhower, too, swatted away those he deemed “reactionaries”—particularly the conservative publisher of the Chicago Tribune, Robert “Colonel” McCormick—for criticizing his choice of Warren. To Eisenhower's mind, these conservatives were living in the past and did not appreciate that the GOP must be a “progressive organization or it is sunk.”Footnote 139
If Warren was a full-steam-ahead liberal on the Court, it would be a mistake to characterize Eisenhower and his administration as conservative, moderate or otherwise.Footnote 140 This extended to Brown v. Board of Education and civil rights. Attorney General Herbert Brownell and his Justice Department advocated for overturning Plessy v. Ferguson when the Supreme Court asked for briefing on re-argument in Brown. As one of Eisenhower's biographers puts it, “Nor is there much evidence that Ike resented Warren's handling of Brown.”Footnote 141 Indeed, the day after the Court issued its decision in Brown, “Eisenhower called the District of Columbia commissioners and urged their help in making the national capital a desegregation model.”Footnote 142 Brownell praised the living constitutionalism of Brown and highlighted that Warren was the “sort of great man,” as opposed to simply “a great lawyer,” the administration had sought in a chief justice.Footnote 143 For these Republicans, the Constitution contained “living principles” that allowed the country to “advance in our standards of what is reasonable and right.”Footnote 144
It should not be surprising that administration officials routinely pointed to an incremental, if still contemporaneously impressive, list of civil rights policy implementation. In addition to implementing desegregation of the military, Eisenhower's administration created the federal Commission on Civil Rights and upgraded the Civil Rights Section to a full Division in the Department of Justice (DOJ).Footnote 145 Beyond extending Social Security to agricultural and domestic workers (occupations disproportionately African American), the Civil Rights Section in the DOJ actively engaged with “9,000 complaints” of rights abuses. The DOJ, too, pressed Congress to establish a “public defender system” so that anyone, “regardless of race or means,” who was charged with a federal crime had an attorney.Footnote 146 If this merely skims the surface of the administration's incremental advances on civil rights—the 1957 and 1960 civil rights acts are also often glossed over—it serves as at least a partial explanation for why Eisenhower secured nearly 40 percent of Black voters in 1956.Footnote 147 And it throws into sharper relief the limitations of regime theory's framework.
Similarly, regime theory's focus on the “presidential wing” of the coalition overlooks the relevant historical counterfactual to the Eisenhower administration: how a President Adlai Stevenson would have governed. Stevenson was a Democrat but not a liberal, racially or generally. In a 1952 letter to Virginia's governor (a fellow Democrat), he expressed his frustrations with impatient “civil rights groups,” and he routinely voiced annoyance at the “extremism” of Northern civil rights activists. Legislative proposals for a Fair Employment Practices Commission needed to be shelved—it “could not be passed anyway.” Indeed, in a Richmond, Virginia speech, he praised “the Constitution of the Confederacy” as a “valuable heritage” while mourning with them the “bleak years” of Reconstruction.Footnote 148 Again and again, publicly and privately, to audiences national and local, Stevenson emphasized that the Democrats could work out their “disagreements” on “desegregation” while keeping the South in the Democratic coalition.Footnote 149 Taken together, a presidents-and-parties approach cannot account for the counterfactual President Stevenson. Here was a Democrat who likely would have accomplished less on civil rights than Eisenhower while appointing justices who needed the Southern Democrats’ sign-off.
Liberals were pleased when Eisenhower announced his second nominee, John M. Harlan, as Justice Jackson's replacement (they also highlighted that nine of eleven votes against his confirmation came from conservatives, both Democratic and Republican).Footnote 150 As a New York corporate lawyer, Harlan was the embodiment of Establishment or Modern Republicanism. He organized lawyers on behalf of the 1948 GOP ticket of Thomas Dewey and Earl Warren and served on a New York City bar committee on civil rights.Footnote 151 Even if Harlan would not be in the Warren Court's vanguard, it shades the historical record to cast him as a conservative. A judicial incrementalist, Harlan understood that the law evolved even as he hoped it would do so at a measured pace. Beyond his sophisticated defense of unenumerated fundamental rights (substantive due process) in the context of sexual privacy, Harlan characterized proper “constitutional adjudication” as analogous to the “common-law approach to legal development.”Footnote 152 This was not constitutional conservatism at the time or as it was later articulated via originalism. As with Harlan, Eisenhower's fifth and final nominee, Potter Stewart, was a racial moderate and supporter of desegregation, drew opposition from Southern Democrats, and was committed to paced progress.Footnote 153 This came through at his confirmation hearings. Stewart defended Brown v. Board, characterized the Court as “a policy making body,” and argued, using the commerce clause as his example, that “the genius of the framers” was writing constitutional text “applicable to a changing and growing society.”Footnote 154
Eisenhower's third nomination was his second so-called mistake: William Brennan. Brennan poses a potential challenge for the jurisprudential policy alliance measurement strategy. His biographers suggest Brennan did not clearly articulate his policy preferences before his nomination.Footnote 155 What we can say is this: once his nomination was announced, an Eisenhower administration official did highlight that Brennan was “a man with lots of progressive ideas.” And liberals in real time saw that Brennan was “far superior” to anyone the regime-affiliated Truman appointed to the Court.Footnote 156 At his confirmation hearing, Brennan avoided answering segregationist Senator James O. Eastland's (D-MS) question-cum-declaration that the Constitution “has a fixed and definite meaning.” Brennan offered that the “application of the Constitution is a problem of applying to living matter the cases that come before us.”Footnote 157 In the least, there is little evidence that he was expected to be even a moderate conservative (what regime theory predicts), and further archival research may reveal that his pre-confirmation worldview aligned with his living constitutionalism on the bench.Footnote 158
Taken together, the foregoing cannot be squared with regime theory. Neither Eisenhower, his administration, nor his justices were conservatives, moderate or otherwise. Indeed, conservatives were consistently angry with Eisenhower and his administration—to say nothing of the Warren Court. They repeatedly insisted that the “principles of constitutional conservatism, as opposed to ‘me-too-ism,’” must capture the Republican Party.Footnote 159 Neither can regime theory account for the President Stevenson counterfactual. Given that he was committed to keeping the South in the Democratic coalition, the justices he appointed may have been—would have likely been—less liberal than Eisenhower's, given the preferences of powerful senators like Eastland and Richard Russell. Finally, it is also unclear how regimes (dominant national coalitions) can be at one time bipartisan, as is argued regarding Eisenhower and Brown, but otherwise grounded in the Democratic Party when considering his administration's predecessors and successors.Footnote 160 Here, too, the post hoc approach of regime theory is problematic. The upshot is this: in these years Supreme Court politics were not primarily structured by party politics and presidents but, as with the New Deal Court, by the debate between the living constitutionalist vanguard and incrementalists’ paced progress.
5.1. The Warren Court's vanguard
A key claim of regime theory is that the Supreme Court is not a counter-majoritarian institution. Rather, the Court's policymaking enjoys democratic imprimatur given its relationship with the elected officials of the regime—they are simply writing into law their preferences. However, this majoritarianism is not readily apparent when we consider public opinion data relative to the Warren Court and its 1960s rights revolution. Setting aside the well-known backlash to Brown, it is unclear how meaningfully majoritarian the Warren Court's policy was. To give just two examples, a string of high-profile decisions holding school prayer unconstitutional and creating a new Constitution for the criminally accused were unpopular with large swaths of the population.Footnote 161 And over the course of the 1960s, public opinion of the Warren Court's body of policymaking grew increasingly unfavorable.Footnote 162
Theorizing the Court as majoritarian is also at odds with how liberal elites and the Warren Court's vanguard contemporaneously characterized the justices’ role in policymaking. In the early 1950s, liberals grew frustrated when the New Deal Court, held back by Frankfurter, Jackson, and Reed, was not a “bold instrument of constitutional policy.” The Court should never “dare to doubt” its ability to push policy forward, nor should it hesitate to second-guess elected officials’ policymaking.Footnote 163 Pleased with the Warren Court's work as the 1950s closed out, liberal intellectuals and governing elites now characterized the Court's role as using “law itself [as] a powerful teacher.” Indeed, in its hands, the law “embodies the moral purpose of society.”Footnote 164
This aligned with how Warren and his vanguard colleagues viewed constitutional law and their role in shaping it. In a Fortune piece on the future of law, Warren had it that law was “simply a more mature and sophisticated” form of social policy vis-à-vis a “child[’s]” early life “judgment that this or that ‘isn't fair.’”Footnote 165 Given that law at bottom had a moral mission, Warren dismissed the notion that a judge should pursue objectivity—that was a “fantasy,” neither the law nor the Constitution could be “neutral.”Footnote 166 Justice Douglas told his audience at NYU's law school that those with even a passing familiarity with legal history knew that the “words of the Constitution gain meaning and content from the value judgments one puts into them.” He expressed impatience with those “judges [who] have a bramble bush which they call the law and behind which they stay.” They used “law” as an excuse to “prevent them from doing justice.”Footnote 167 At the University of Tennessee's law school, Justice Hugo Black reminded them that lawyers had a “responsibility as the guardian” of the law and Constitution. And lawyers, particularly those on the Court, would police the state and “mark the boundaries beyond which the Government shall not go. (Applause).”Footnote 168 The architect of the rights revolution, Justice Brennan, summed up the confidence of the Warren Court's vanguard. In a remarkable address, Brennan maintained that the law was “coming alive as a living process” to “changing human needs.” And if neither Congress nor the president was acting with sufficient speed, the Court had an institutional responsibility. If the choice was “no one doing it at all,” then the Court “must finally act.” Brennan saw the Court's role as the conscience of the nation. “Just as an individual may be untrue to himself,” so too “may society be untrue to itself.” The Court must “keep the community true to its own fundamental principles.”Footnote 169
If the Warren Court's jurisprudential revolution was not always in line with the median American voter, this was not cheap talk. The vanguard followed through on the bench during the 1950s.Footnote 170 Neither liberal elites nor the vanguard of the Warren Court, drawn from both parties, viewed their role as the foot soldiers in a Democratic Party regime. Rather, they were ideological leaders for liberalism.Footnote 171 This is another point of American political development that regime theory struggles to square. Along with liberal elites, the bipartisan liberal vanguard saw that the Court might be an institutional (and moral) leader because of the bipartisan congressional coalition of conservative Republicans and Southern Democrats. This “unholy alliance,” liberal governing elites and interest group leaders routinely complained, too often blocked necessary legislation.Footnote 172 That the party system was slowly realigning on ideological grounds not only complicates the notion of a liberal Democratic regime undergirding the Warren Court—it also points toward why the justices believed they could light the path forward for liberals.Footnote 173 Rather than the Court eliding the counter-majoritarian difficulty, given the institutional blockage in Congress, the justices saw themselves as pushing ahead of elected elites who were moving too slowly.
Neither is it clear that the Warren Court's 1962 to 1969 remaking of constitutional law—truly a revolution—was in lockstep with a seamless New Frontier-Great Society regime. If President Johnson's liberalism and judicial appointments prove a tight fit with regime theory expectations, JFK's do not.Footnote 174 Kennedy's first ideological commitment was to technocratic liberalism and he was mindful, like Stevenson, of keeping the South in the Democratic coalition. This is why liberals routinely complained about his administration.Footnote 175 Kennedy's racial politics were moderate to conservative. Until his June 1963 conversion on civil rights—which came after his two Supreme Court appointments—he viewed civil rights leaders as just another interest group to be appeased and grumbled that the Student Nonviolent Coordinating Committee were “sons of bitches.”Footnote 176 Because JFK was interested in keeping his electoral coalition together, JFK's judicial appointments for seats in the South were, as liberals complained, “disastrous” (in contrast to Eisenhower's “appointment of integration supporters to Southern federal courts”).Footnote 177 And because Kennedy was not particularly interested in nominating a vanguard justice, labor lawyer Arthur Goldberg's nomination to the Court, the rights revolution's all-important fifth vote, was more contingent than overdetermined by a JFK-led regime.Footnote 178
In sum, painting JFK's and LBJ's administrations as partners in an uninterrupted regime exaggerates the former's liberalism, and in any case, Justice Byron White, Kennedy's other nominee, does not conform to this approach's expectations.Footnote 179 More broadly, the Warren Court's living constitutional vanguard, drawn as it was from both parties, did not view its role as merely assisting Democratic elected elites. Rather, these justices viewed their role as leaders. And the justices did lead via the rights revolution, often getting out in front of public opinion. Thus, it is unclear that either majoritarianism or regime theory best captures the Warren Court's policymaking.
5.2. Nixon’s Court and the ‘New Right regime’
Regime theory paints Nixon as a conservative, the presidential progenitor of the “New Right regime” that Reagan's 1980 election consolidated.Footnote 180 But Nixon is difficult to pin down as a conservative, New Right or otherwise. Homing in on Nixon's often-exaggerated “Southern Strategy,” his private thoughts and psychology, and his failed nominations of Southern judges Clement Haynsworth and G. Harrold Carswell—defeated by bipartisan majorities—obscures Nixon's ideological heterodoxies.Footnote 181 Both contemporaneous commentators and scholars highlight that Nixon was a coalitional politician who chased the median voter. Insofar as there was a Southern Strategy in 1968, it targeted the Rim South—Nixon looked to steer a course between Humphrey's continuation of the Great Society and Wallace's conservative populism that had a clearer racial edge.Footnote 182 For all the attention to Patrick Buchanan's role in the White House as embodying Nixon's racial conservatism, this overlooks that Nixon often ignored his memoranda, while Buchanan admitted that defending Nixon's policies to conservatives was like a “Christian marching into the Lion's Den.”Footnote 183
Thus, it is not surprising that looking to the actual policy of his administration reveals Nixon as “the institutional father of affirmative action”—his administration implemented and extended it in the race and gender contexts and “sent budgets to Congress that increased agency appropriations for civil rights enforcement from \$75 million to \$2.6 billion in 1972.”Footnote 184 Nixon also oversaw a vast expansion of the administrative state, including the Environmental Protection Agency (EPA), Bureau of Alcohol, Tobacco, and Firearms (ATF), and Occupational Safety and Health Administration. What's more, as David Mayhew highlights, “in the regulatory area, Nixon's years produced more legislation than any period since the New Deal.”Footnote 185 Conservatives, quickly displeased with the policy output of his administration, denounced him as a “tired, tergiversating tramp”Footnote 186; by 1972, they decided to primary him.Footnote 187 The claim, then, is not that Nixon was a liberal, racial or otherwise. Rather, the claim is that he was not a conservative—as conservatives themselves contemporaneously grumbled—and thus difficult to cast as inaugurating a New Right regime.
Nixon's ideological heterodoxy is reflected in the ideological pluralism of his justices (and the administration's scattershot approach to nominating them).Footnote 188 Only one of his four justices, William Rehnquist, was a thoroughgoing conservative, as would be expected of a New Right regime.Footnote 189 Nixon's choice for chief justice, Warren Burger, had an ambiguous pre-confirmation constitutional worldview. He morphed from a “‘liberal Minnesota Republican’ on civil rights” in the 1950s to a moderate conservative on the DC Circuit Court of Appeals in the 1960s.Footnote 190 Burger's ambiguity was such that he was lauded at his confirmation hearing by liberal senators—including Edward Kennedy and Birch Bayh—and approved by an overwhelming vote (74-3).Footnote 191 Burger was in the Roe v. Wade majority and evolved from something of an incrementalist to a more conservative jurisprudence over time, though conservatives never embraced him as one of their own.Footnote 192 Thus, Burger is a case where both regime theory's PPF prediction and a jurisprudential policy alliance framework are stymied.
Lewis Powell, an elite corporate lawyer who wrote the famous “Powell Memo,” had a pre-nomination record closer to incrementalism than constitutional conservatism.Footnote 193 On the Court, he was in the Roe v. Wade majority, wrote the key opinion that constitutionalized affirmative action, and joined (and concurred in) a decision holding that Texas could not deny undocumented children a free public education.Footnote 194 Justice Harry Blackmun is yet another post hoc Republican “mistake,” given that his living constitutionalism is a mismatch with the theorized New Right regime. But his tenure as a federal court of appeals judge clearly signaled his jurisprudential policy alliance. In an opinion regarding corporal punishment of prisoners, Blackmun wrote that the Eighth Amendment's meaning was not only “flexible,” but that “broad and idealistic concepts of dignity, civilized standards, humanity, and decency” were “useful and usable” standards to judge its contemporary meaning.Footnote 195
Finally, as with Nixon, President Gerald Ford runs up against the theorized New Right regime. Ford and his administration were moderate technocrats, closer to Eisenhower's Modern Republicanism.Footnote 196 This was why Reagan challenged him for the party's nomination in 1976 and nearly captured it. Ford's attorney general, Edward Levi, not only supported gun control—“objections” to it do not fit “modern urban life”—but he publicly rejected constitutional conservatives’ originalism, at that point trying to embed itself in the legal academy to compete with living constitutionalism.Footnote 197 In one speech, Levi rejected the notion that “knowledge of the original understanding will solve all our contemporary controversies.”Footnote 198 In fact, as early as 1948, Levi's “An Introduction to Legal Reasoning” made clear his incrementalist bent.Footnote 199 Here, too, we see the limitations of party-based accounts. A Republican attorney general, part and parcel of the presidential wing of a putative New Right regime, told constitutional conservatives their core public law claim was wide of the mark.
For its part, the New Right made clear their frustration with Ford and his administrative appointees—they “have been female, black, Jewish or from the Harvard faculty. Ethnics, conservatives, and Wallace-ites have gotten nothing.”Footnote 200 It might not be surprising, then, that Ford's lone Supreme Court appointee, John Paul Stevens, emerged as a liberal on the Court. In the 1940s, Stevens clerked for Justice Rutledge and encouraged his boss to take bold action as constitutional challenges to segregation reached the Court.Footnote 201 As a federal court of appeals judge, he viewed the Fourteenth Amendment's due process clause “as a source of substantive rights,” long a sticking point for constitutional conservatives.Footnote 202 And another scholar's analysis revealed that Judge Stevens's “doctrinal positions” on unenumerated rights, gender discrimination, and election law were predictive of what Justice Stevens did when faced with those issues on the Court.Footnote 203
In short, it is not clear that Nixon's and Ford's tenures mark a New Right regime. Setting aside that the New Right movement emerged after Nixon's resignation, the GOP in these years was deeply cleaved between Establishment Republicans and conservatives.Footnote 204 The Senate's bipartisan rejection of two of Nixon's nominees also drives home that a new regime—an entrenched governing vision—had not taken hold. By that same token, Nixon's and Ford's Court appointees ran from living constitutionalist (Blackmun and Stevens) to incrementalist (Powell). Burger, a betwixt-and-between conservative, would maneuver to keep himself in the Court's majority, and the lone constitutional conservative (Rehnquist) often found himself in dissent. Rather than a conservative Supreme Court, there was a steady pace of liberal constitutional rulings over the 1970s—for example, abortion rights, gender (sex) equality, constitutionalizing affirmative action, blessing disparate impact discrimination claims, expanding the scope of religious liberty for religious minorities, and further separating church and state.Footnote 205 This is further difficult to square with a posited New Right regime.
6. The Reagan regime and jurisprudential policy alliances
The Reagan regime is a most-likely case for regime theory. “If the case does not [conform to expectation], there is a basis for revising or rejecting the theory.”Footnote 206 As regime theorists see it, President Reagan's 1980 election brought on a period of “conservative Republican hegemony,” extending into Donald Trump's presidency, as Reagan reconstructed American politics.Footnote 207 But as highlighted at the outset and fleshed out below, a hegemonic regime and a thoroughly conservative Supreme Court are belied by the complexity of presidential, party, and judicial politics in 1980 and into the twenty-first century.
As a revolution, Reagan's was grounded more in myth-making (by both conservatives and liberals) than in significant institutional and policy accomplishments.Footnote 208 Conservatives complained in real political time that the revolution was far more rhetorical than substantive. Even before Reagan took office, New Right leaders were in revolt: “The Republican Party is a fraud. It's a social club where the rich people go to pick their noses.”Footnote 209 Not simply the party apparatus, conservatives did not even have control over the White House, where Establishment Republicans like Chief of Staff James Baker kept their revolution in check.Footnote 210 When conservatives in the administration tried to implement colorblindness as the standard for bureaucratic and statutory public law (and thus for public and private employment), Establishment Republicans in the Cabinet allied with elite corporate managers to keep race- and gender-conscious affirmative action as the status quo.Footnote 211 Attempts to reorient the EPA, ATF, and Interior and Education departments toward conservatism met with minimal success.Footnote 212 Beyond the often overlooked data point that Reagan raised taxes four times, the welfare state grew over his two terms, and the public sector workforce grew.Footnote 213 Thus, in 1987, National Review complained with only some exaggeration that Reagan's purported revolution had amounted to little more than “managing the social revolution imposed by statists.”Footnote 214 In short, if the Reagan years were marked by “conservative hegemony,” conservatives failed to notice this control.
So, it should not be surprising that two of Reagan's four justices were Republicans rather than conservatives—and the two Republicans would routinely anger the latter, especially in the high-profile cases where the Court made policy on the cultural issues they most deeply cared about. Conservatives knew right away that Reagan's first nominee, Arizona state court judge Sandra Day O'Connor, “did not share Reagan's social values.”Footnote 215 Before her confirmation hearings, over two dozen conservative interest groups sent the White House a telegram to voice their opposition to O'Connor.Footnote 216 Conservative Digest ran a critical cover story (the nomination was Reagan's “First Broken Promise”), and a North Carolina doctor saw “victory slipping away”—already by 1981, O'Connor's nomination was of a piece “with so many non-conservatives appointed to key positions.”Footnote 217
Conservatives grasped this because they vetted O'Connor's pre-confirmation record more thoroughly than the administration. The key to her incrementalist constitutional politics was not in her judicial opinions or published writing: she had written only thirty opinions (dealing with state law issues) and two nondescript law review articles.Footnote 218 But O'Connor had, enterprising conservative journalists and activists discovered, supported the Equal Rights Amendment, voted to authorize new administrative agencies as a state legislator, and keynoted an address to a liberal women's group.Footnote 219 Her confirmation hearing was also revealing. O'Connor testified that she “believe[d] in the exercise of judicial restraint,” and would approach the interpretation of statutes on a “case-by-case basis”—that is, judicious incrementalism. Asked by Senator Orrin Hatch (R-UT) if she would follow precedent or “the intent of the framers of the Constitution,” O'Connor agreed that historical understandings were “vitally important.” Yet, invoking Brown v. Board and Plessy v. Ferguson, she noted that discovering the framers’ intent was a “process that unfolds” over time.Footnote 220 In short, O'Connor revealed herself to be who she was on the Court, a culturally moderate incrementalist who prized the paced development of public law.Footnote 221 Pointing up conservatives’ lack of sway with Republican senators, O'Connor was confirmed 99-0.
Known quantities, Reagan's elevation of Justice Rehnquist to chief justice, alongside his nomination of federal appeals court judge Antonin Scalia, excited conservatives.Footnote 222 If Rehnquist was the first postwar constitutional conservative on the Court, Scalia was the second, as conservatives recognized prior to his nomination.Footnote 223 On the bench, Scalia became a jurisprudential and political champion of constitutional conservatives’ institutional order, and he worked hard to popularize originalism for a broader audience.Footnote 224 Scalia would set the baseline for what conservatives expected in Supreme Court justices from every nomination afforded a Republican president.
Rehnquist and Scalia both confirm regime theory and a jurisprudential policy alliance approach. But both approaches struggle with the heterodox libertarianism of Justice Anthony Kennedy, if for different reasons.Footnote 225 Regime theory would expect Kennedy to be a thoroughgoing conservative.Footnote 226 Yet, that Kennedy, a little-known federal appeals court judge from Sacramento, was even nominated undercuts regime theorists’ claims of conservative hegemony or a dominant national coalition 7 years after Reagan's election.Footnote 227 Reagan's first choice for the seat, Robert Bork, was rejected by a bipartisan alliance of moderate Republicans and Democrats because of his deep conservatism and open embrace of the Reagan administration's official constitutional philosophy: originalism.Footnote 228 Kennedy's libertarian jurisprudence—supportive of, for example, constitutional rights for both gay persons and gun owners—overlaps with both living constitutionalism and constitutional conservatism.Footnote 229 Little remarked upon, his confirmation hearings suggested that Kennedy might have been even more liberal than he turned out to be. The famously progressive Harvard law professor Laurence Tribe, after analyzing Kennedy's judicial decisions as a federal appeals court judge, testified that his opinions “demonstrate a genuine commitment to the idea of a living constitution.”Footnote 230 Kennedy himself testified on his own behalf that there was “an unwritten Constitution,” one that contained “additional commitments to liberty and freedom” that made the Constitution “a living reality.”Footnote 231 Perceptive conservatives saw that Kennedy would be unpredictable: he had never been “a featured speaker at a Federalist Society convention.” Nor did his judicial opinions suggest that he had been “repelled” by the Warren Court.Footnote 232 He was a Republican, but they were correct to worry that he would not be an across-the-board constitutional conservative. In sum, Kennedy was not a conservative on the bench (thus regime theory fails), but neither was he the consistent living constitutionalist his confirmation hearings suggested. If Kennedy did at times have a moral view of constitutional law, his overall record prevents coding him as a correct jurisprudential policy alliance approach prediction.
6.1. The Bushes and the Court’s cultural liberalism
For regime theory, Vice President George H.W. Bush's 1988 election marks a seamless extension of conservative hegemony.Footnote 233 Yet, for conservatives, Bush's presidency was closer to Ford and Nixon's Republicanism. The list of Bush's heterodoxies was shorter than Nixon's and Ford's, but still too long: the Americans with Disabilities Act, the Civil Rights Act of 1991, enforcing the Community Reinvestment Act, education policy that was “liberal,” taking the side (in conservatives’ estimation) “of speeding drunk felon Rodney King,” and weakness on gun rights.Footnote 234 Bush was also responsible for another round of “sage-brush rebellion” in the western United States because he nominated a moderate for the EPA.Footnote 235 When an aging neoconservative (Irving Kristol) had the temerity to argue that Bush was the leader of the conservative movement, it was fighting words. He was “not the leader,” and anyone who “considers himself a member of the tribe” would know that.Footnote 236 By 1991, conservative annoyance had become anger. Bush had not merely “jettisoned” conservatives; he was now “dangerous to America and conservatives.”Footnote 237
Nevertheless, regime theory expectations are that Bush would appoint thoroughly conservative justices because he was the leader of the dominant national coalition.Footnote 238 Justice Clarence Thomas and his jurisprudence match theoretical expectations for both regime theory and a jurisprudential policy alliance approach.Footnote 239 Regime theory, however, must chalk up Justice David Souter's moderately liberal judicial politics—that is, his incrementalism (sometimes living constitutionalism)—as still another presidential “mistake.”Footnote 240 Leading up to his confirmation hearings, conservatives were unsure of Souter's constitutional politics. Some ran with a dissent he wrote as a state court judge that seemed to indicate he was a “devoted believer” in originalism; others were more circumspect.Footnote 241 But as soon as they heard his testimony before the Judiciary Committee, conservatives’ “worst fears” were verified.Footnote 242 The first indication that he would not be a constitutional conservative was this statement: “I believe that the due process clause of the 14th amendment does recognize and does protect an unenumerated right of privacy.” The Bill of Rights was “not simply” limited to “specific rights.” It was also predictable that Souter would refuse to join the Rehnquist Court's “federalism revolution” of the 1990s. “The commerce power,” Souter testified, “has grown” so expansive that it “would probably have astonished the Founders.” As he saw it, the “authority given to the National Government through the 14th amendment, which again, was inconceivable to the Framers of the 10th [amendment]” counseled against reinvigorating states’ rights.Footnote 243
Regime theory emphasizes the Court's revival of federalism in the 1990s, highlighting it as a classic case of judicial enforcement of a regime's political commitments.Footnote 244 Empirically, however, this judicial revolution lacked punch—the lower federal courts did not use these opinions to constrain the federal government, nor did these decisions much excite conservatives.Footnote 245 At the same time, regime theorists often gloss over the justices’ cultural liberalism in these years, even as the Court had seven to eight Republican justices in the 1990s.Footnote 246 As noted above, it is difficult to overstate the anger conservatives felt in the wake of Casey in June 1992. After “twelve years of making judicial appointments,” they could not get Roe overturned: the “Reaganites must be called to account.”Footnote 247 More ominously, some asked, “why are we duty-bound to obey this command of the Court.”Footnote 248
Regime theory, too, sits awkwardly with a GOP-dominated Court protecting gay persons from “animus” for the first time. In Romer v. Evans (1996), the justices ruled unconstitutional a state constitutional amendment that barred state and local governments from protecting gay persons against discrimination based on sexual orientation. As was recognized at the time by gay rights activists, Romer was “the most important victory ever for lesbian and gay rights.”Footnote 249 Spurred by Justice Scalia's animated dissent, conservatives saw the decision as sending “a bone-chilling message.” In addition to “weeping and praying,” they argued that the “war for American culture has entered a new, climactic stage.”Footnote 250 In other words, a Court stocked with Republicans was again betraying them. The Virginia Military Institute decision from that same year, ending the military college's male-only admissions policy, sealed it. After the VMI decision came down—and rather than reveling in a reinvigorated Tenth Amendment—conservatives saw a Court that “is (at best) one vote away from being an engine of radical left-wing social change.”Footnote 251
During the 1990s, then, conservatives fully appreciated that a Republican Supreme Court was far from sufficient to achieve their legal policy aims. Capturing the Court, and other key institutions, was going to “require a great deal more than politics as usual.”Footnote 252 They now insisted that there be no more GOP Supreme Court nominees who did not have “an established commitment to the conservative legal movement.”Footnote 253 This, too, was another aspect of originalism as a “political practice”—it served as a signal that a potential judge or justice was not simply a Republican, but a constitutional conservative first and foremost.Footnote 254 As the 2000 presidential election approached, a future George W. Bush-appointed court of appeals judge summed up their collective wish. Closing with “a prayer” at a Federalist Society meeting, William Pryor supplicated, “Please God, no more Souters.”Footnote 255
But there almost was another Souter. After President George W. Bush's reelection, Justice O'Connor, who had just saved affirmative action and extended protection for gay rights, announced her retirement.Footnote 256 To replace her, Bush nominated Harriet Miers, a former corporate attorney from Texas, then his White House counsel.Footnote 257 Even as Leonard Leo, on leave from the Federalist Society to serve as Bush's “point man” on the nomination, tried to reassure conservatives that Miers would not be another Souter, a wellspring of conservative resistance demanded that Bush replace O'Connor with a true believer.Footnote 258 On Fox News, Rush Limbaugh reminded conservatives, “[w]e're in a war politically,” so it was necessary to be sure they were flipping O'Connor's incrementalist seat.Footnote 259 His hand forced by conservatives, Bush backed down and nominated a known quantity, Judge Samuel Alito. In short, even a president as conservative as Bush (and a largely conservative GOP) sits uncomfortably with regime theory's privileging of the party's “presidential wing.” It is difficult to discern which Republican faction, wing, or group Bush was favoring by picking Miers before reversing course at conservatives’ behest. Even at this late date of conservative capture of the Republican Party, the conservative jurisprudential policy alliance needed to exercise a veto over a same-party president's potential mistake.
7. Conclusion
The central aim of this paper is to offer the first sustained historical critique of regime theory from the New Deal to George W. Bush. Regime theory staked its claim on a historical orientation to better understand Supreme Court politics. Yet, regime theory often relied on, as Paul Frymer puts it, “political context” rather than sustained historical evidence.Footnote 260 Putting the framework's hypotheses to the test against archival and primary source materials reveals a significant gap between theory and empirics. As shown in Table 1, it is often difficult to line up post-New Deal presidential and party politics—the posited politics of the regime(s)—with same-party justices’ constitutional policymaking. There are N = 35 confirmations from 1937 to 2006. A jurisprudential policy alliance approach correctly predicts the justices’ behavior on the Court just over 85 percent of the time (30/35). By contrast, regime theory correctly predicts the justices’ behavior less than half the time (16/35).
If FDR remade the Supreme Court, what, exactly, “New Deal liberalism” meant as a judicial philosophy was up to his justices to work out on their own rather than simply a reflection of regime politics. Reagan (and, following him, George H.W. Bush) tried to remake the Supreme Court but failed to sweep away the old regime because half of their justices rejected the new regime's theory of originalism. Beyond these two reconstructive presidents—presidents that are critical to the framework—regime theory in turn relies on a stylized history of presidential politics that sits awkwardly with the political records of Eisenhower, Stevenson, JFK, Nixon, and Ford.
Regime theory leveraged a theory of the politics presidents make (Skowronek's political time) and adapted it as one that could equally well account for the politics the Supreme Court makes—or, when that model failed to hold, downplay it in favor of a still more difficult to pin down “constitutional regime.”Footnote 261 But this adaptation of presidential politics obscures the development of Supreme Court politics. Canvassing the historical materials further shows that the justices’ politics, from the New Deal to George H.W. Bush, often fail to match theoretical expectations. Only in the 1990s, after polarization fully cleaved the parties ideologically, did Democratic and, finally, Republican presidents stop making “mistakes” when they nominated justices. That is, though regime theory claims to explain constitutional politics dating back to (at least) the New Deal, it is only since the Clinton–George W. Bush years that the justices’ expected constitutional politics reliably align with its presidents-and-parties approach. But just when this aspect of regime theory began matching expectations, a dominant national coalition that these ideologically predictable justices could be connected to evaporated.
Ironically, regime theory as currently conceived is rather similar to quantitative approaches to judicial politics: coding (as such) a dichotomous and static liberal Democratic Party and conservative GOP from FDR forward and predicting that the justices would follow suit.Footnote 262 But the number of confirmations from FDR through Bush's nomination of Alito (N = 35) is tractable. APD scholars might use their comparative advantage—concept formation and leveraging archival and primary source materials—to disentangle a blunt conflation of party identification and ideology and refine our understanding of constitutional politics. If quantitative models of judicial voting behavior might puzzle over why certain justices “drifted” from their expected politics based on partisan identification, APD scholars can ask richer questions. What is more, that it was Republican justices—for example, Warren, Brennan, Blackmun, Stevens, O'Connor, Kennedy, Souter—who time and again “drifted” suggests that the conflation of Republicanism and conservatism is limited as a measurement strategy.
If the goal is to explain Supreme Court politics over time, this paper posits that we should place jurisprudential policy alliances and the institutional orders they embed on the Court at the center. Importantly, jurisprudential policy alliances developed outside of presidential and party politics according to their own public law logics. With adherents in both parties, jurisprudential policy alliances grew out of and alongside modern American ideologies—Progressivism-cum-liberalism and conservatism—that slowly and only later captured party politics.Footnote 263 So a jurisprudential policy alliances approach and measurement strategy focuses on the justices’ constitutional and public law worldview while placing party identification on the back burner. A jurisprudential policy alliances approach is not infallible; some justices confound it. Its scope begins with the twentieth century, and it makes no claim on nineteenth-century constitutional politics—where regime theory may be at its strongest predictive power.Footnote 264
With these caveats, for APD scholars, this paper strongly suggests that a jurisprudential policy alliance approach could form the conceptual base of a reinvigorated historical approach to Supreme Court politics. And by allowing for a third category or ideal type—incrementalism—the measurement strategy set forth above avoids having to retrofit incrementalists into a liberal-Democratic or conservative-Republican framework that runs up against their pre- and post-confirmation politics. Put differently, what the above suggests is that modern American constitutional politics developed via ideologically charged justices leading the way, tangential to party politics as such.Footnote 265 A willful living constitutionalism, aided by an incremental, moderate liberalism, was hegemonic across the partisan board from FDR to Reagan—from, that is, the New Deal Court to the Burger Court (save for Justice Rehnquist and perhaps Chief Justice Burger). The “conservative” justices from these years—for example, Felix Frankfurter, Byron White, Lewis Powell—were unrecognizable as such to conservatives, then or today. As highlighted by Alito's Justice Department application, constitutional conservatives viewed their enemy as anyone, whether Democratic or Republican, whether living constitutionalist or incrementalist, who did not subscribe to their understanding of public law. This was because, as they correctly predicted time and again, a Republican justice could not necessarily be counted on to make conservative policy on the Court. The problem with the Warren and Burger Courts, and the issue with the Rehnquist Court's cultural liberalism in the 1990s, was not that their policymaking flowed from presidents and the party they led, but that too many justices from both parties were not conservative.
Reframing the inquiry along these lines underscores a number of questions that have not been or cannot be answered via extant approaches. Outside of presidents and parties, what were the institutions and ideas—that is, the developmental paths—that allowed legal liberalism to so thoroughly displace constitutional conservatism in the 1940s that the only intra-Court debate was over which form of judicial liberalism would mark constitutional politics? That is, instead of asking why the New Deal and Warren Court justices did not take a more progressive stance, we might mine their papers to better appreciate just how thoroughly legal liberalism had routed constitutional conservatism. Rather than forcing the relative liberalism of Justices Frankfurter, Harlan, and Clark into a conservative box, we might understand William Rehnquist as the first (constitutional) conservative to be placed on the Court in nearly half a century.Footnote 266 By that same token, rather than abrading the historical record to classify Eisenhower, his administration, and the justices he appointed as conservative or “mistakes,” we might ask how these Republicans came to share the broad and deep consensus on a living, evolving Constitution.
Closer to today, if we take seriously that the Rehnquist Court's culturally liberal decisions in the 1990s and early 2000s—Lee v. Weisman, Casey, Romer, VMI, Lawrence v. Texas, and Grutter v. Bollinger—were the cases most important to conservatives, rather than assuming away that this was a time of conservative hegemony, what does this tell us about these Republican legal elites’ continued ability to thwart the conservative legal movement and the Federalist Society's legal policy goals? And what might the collective constitutional politics of Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Ketanji Brown Jackson tell us about the development of living constitutionalism? That is, given the sense that the latter two are more outspokenly progressive than Clinton's nominees—something quantitative voting scores might have a hard time distinguishing—what might this tell us about not simply the Democratic Party but wider elements of the progressive legal movement? Extending that, as the elite legal academy and elite attorneys have moved further to the left, can they produce a Democratic Supreme Court justice with still more progressive politics—is there a potential Justice Brennan for the twenty-first century among Biden's lower court nominees?Footnote 267 And as the Court has morphed from a Republican supermajority to a conservative supermajority, what does the resurgence of natural law and “post-liberalism” tell us about the future of constitutional conservatism?Footnote 268 What might we be able to predict about the next evolution of constitutional conservatism?
These questions suggest that reconfiguring the regime theory framework is potentially generative for better understanding the past, present, and future of American political development. Presidents, parties, and senators of course must not be jettisoned, but the justices should be at the center, or at least closer to it. Finally, the hope is that this article spurs a collective effort of APD scholars to theory-build in this area—the jurisprudential policy alliances framework is my effort to begin that scholarly conversation. Whatever the framework going forward, the above lays bare the need for a methodologically, theoretically, and empirically richer understanding of American constitutional development.
Supplementary material
The supplementary material for this article can be found at https://doi.org/10.1017/S0898588X26100455.
Acknowledgements
I would like to thank Stephen Skowronek, John Dearborn, Jack Greenberg, Warren Snead, Sam Hayes, William Baude, Dennis Wieboldt, the editors, and the anonymous reviewers for incisive comments that made this paper much better. Feedback from participants at the Policy History Conference (Charlotte, NC, June 4–6, 2025) on an earlier version of this paper was also very helpful.
Competing interests
The author declares none.
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