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Political Realignment and the Legal Marketplace of Ideas

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Political Realignment and the Legal Marketplace of Ideas THE POLITICAL FOUNDATIONS OF LEGAL THEORY: POLITICAL REALIGNMENT AND THE LEGAL MARKETPLACE OF IDEAS By SIMON ZSCHIRNT A dissertation submitted in partial fulfillment of the requirements for the degree of DOCTOR OF PHILOSOPHY WASHINGTON STATE UNIVERSITY School of Politics, Philosophy & Public Affairs MAY 2013 © Copyright by SIMON ZSCHIRNT, 2013 All Rights Reserved © Copyright by SIMON ZSCHIRNT, 2013 All Rights Reserved ii To the faculty of Washington State University: The members of the Committee appointed to examine the dissertation of SIMON ZSCHIRNT find it satisfactory and recommend that it be accepted. Cornell W. Clayton, Ph.D., Chair J. Mitchell Pickerill, J.D., Ph.D. Travis N. Ridout, Ph.D. iii THE POLITICAL FOUNDATIONS OF LEGAL THEORY: POLITICAL REALIGNMENT AND THE LEGAL MARKETPLACE OF IDEAS Abstract by Simon Zschirnt, Ph.D. Washington State University May 2013 Chair: Cornell W. Clayton Models of legal change identifying electoral politics, specifically realignments of the political system that replace one political-electoral regime with another, as a key to understanding the evolution of legal thought have been widely accepted. However, the precise causal order of the chain of events linking political and legal change is less clear given the autonomy of the legal profession. This study addresses this question by examining the dynamics of change in the legal marketplace of ideas during three periods of political realignment (the 1980s, the 1930s, and the 1890s). The timing and magnitude of the changes in legal orthodoxy that occurred during each of these periods are measured primarily through analysis of patterns in legal scholarship in elite law reviews that measures the extent to which changes in the amount of scholarship embracing (as well as attacking) legal ideologies associated with new regimes correspond to critical events signaling support for those ideologies by prominent political actors iv affiliated with those regimes. The results suggest that the relationship between realignments of the political system and change in the legal marketplace of ideas has not been constant over time but rather has been contingent upon the comprehensiveness of the realignment and upon how deeply entrenched the outgoing regime’s legal ideology is in the legal marketplace of ideas. In particular, legal ideologies that are affiliated with a regime that is the product of a partial and protracted realignment and which confront a legal marketplace of ideas that remains thoroughly permeated by the outgoing regime’s legal ideology are likely to be highly reliant upon overt political support for legitimacy. Conversely, legal ideologies that are affiliated with a regime that is the product of a complete and rapid realignment and which confront a legal marketplace of ideas that is less thoroughly permeated by the outgoing regime’s legal ideology are likely to be less reliant upon overt political support for legitimacy. v TABLE OF CONTENTS Page ABSTRACT ...........................................................................................................................iii LIST OF TABLES .................................................................................................................vii LIST OF FIGURES ...............................................................................................................viii CHAPTER 1. INTRODUCTION ................................................................................................1 Law, Judicial Empowerment, and the Political Regime ................................2 The Role of Support Structures for Legal Change .........................................11 The Synchronicity of Political and Legal Time .............................................15 Explanations for the Correlation between Political and Legal Change .........21 Objectives and Research Design ....................................................................23 Contributions..................................................................................................32 2. ORIGINALISM AND THE NEW RIGHT REGIME ..........................................34 Introduction ....................................................................................................34 The Rise of the New Right Regime ...............................................................35 The Insufficiency of Conservative Legal Mobilization .................................41 The Role of Political Elites ............................................................................48 Legitimating Originalism ...............................................................................59 Understanding the Relationship between the New Right Regime and the Rise of Originalism ............................................................................69 Conclusions ....................................................................................................84 3. LEGAL REALISM AND THE NEW DEAL REGIME ......................................86 Introduction ....................................................................................................86 The Rise of the New Deal Regime ................................................................87 Legal Formalism Contested ...........................................................................92 The Realist Turn in Legal Thought ................................................................98 Resistance to Legal Realism ..........................................................................105 Political Support for Legal Realism ...............................................................107 vi Understanding the Relationship between the New Deal Regime and the Rise of the Legal Realist Movement ..................................................111 Conclusions ....................................................................................................131 4. LEGAL FORMALISM AND THE 4th PARTY SYSTEM’S REPUBLICAN REGIME ............................................................................................134 Introduction ....................................................................................................134 The Rise of the 4th Party System’s Republican Regime ................................136 Legal Formalism and Its Origins ...................................................................140 The Opening of the Lochner Era of Jurisprudence ........................................146 The Political Dynamics of Legal Formalism .................................................149 Understanding the Relationship between the Political Triumph of Conservatism and the Formalist Turn in Legal Thought ...................156 Conclusions ....................................................................................................170 5. CONCLUSIONS...................................................................................................172 BIBLIOGRAPHY ..................................................................................................................180 CASES CITED ......................................................................................................................202 vii LIST OF TABLES Table Page 2.1 Partisan Control of Political Institutions during the New Right Regime...................36 2.2 Supreme Court Appointments during the New Right Regime ..................................77 3.1 Partisan Control of Political Institutions during the New Deal Regime ....................88 3.2 Supreme Court Appointments during the New Deal Regime ....................................127 4.1 Partisan Control of Political Institutions during the 4th Party System .......................137 4.2 Supreme Court Appointments during the 4th Party System .......................................164 viii LIST OF FIGURES Figure Page 2.1 References to the Courts in Republican Party Platforms, 1968-1988 .......................51 2.2 Originalism in Supreme Court Confirmation Hearings, 1975-1990 ..........................61 2.3 Originalist Publications Appearing in the 15 Most Influential Law Reviews, 1980-1990 ......................................................................................................67 2.4 Publications Critiquing Originalism Appearing in the 15 Most Influential Law Reviews, 1980-1990 ......................................................................................68 3.1 Legal Realist Publications Appearing in the Three Most Influential Law Reviews, 1928-1938 ......................................................................................................117 3.2 Legal Realist Publications Discussing Constitutional Issues and/or Constitutional Interpretation Appearing in the Three Most Influential Law Reviews, 1928-1938 ......................................................................................................118 4.1 Legal Formalist and Anti-Formalist Publications Appearing in the Two Most Influential Law Reviews, 1891-1901 .............................................................160 1 CHAPTER ONE INTRODUCTION “People don’t understand what the law schools were like 20 years ago” explains Gary Lawson, one of the founding members of the Federalist Society, the nation’s leading conservative legal professional organization. “…[A]nyone who said anything out of the orthodoxy would get hissed” (Teles 2008, p. 166). Although the liberal orthodoxy that Lawson is referring to retains a strong presence in the law schools, conservative approaches to the law have since enjoyed
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