Citation

Benson J. Law Soc. Inq. 2008; 33(4): 1071-1110.

Copyright

(Copyright © 2008, American Bar Foundation, Publisher John Wiley and Sons)

DOI

10.1111/j.1747-4469.2008.00132.x

PMID

unavailable

Abstract

The last ten years have witnessed the reemergence of fears of judicial power among scholars on the left. This renewed “Anti-Court” movement includes the minimalism of Cass Sunstein, the popular constitutionalism of Mark Tushnet and Larry Kramer, and the bipartisan judicial restraint of Jeffrey Rosen. This essay traces the origin, development, and implications of this movement, noting its particular ties to historic trends in the academy: the Legal Process School, critical theory, and the positivist work of Gerald Rosenberg and Michael Klarman. The essay also considers the movement's preference for majoritarian politics—a partiality borne of dissatisfaction with the Rehnquist Court, but also, conversely, recognition of the failures of conservative attempts at policy making. The essay concludes by considering the ambitions of these scholars to develop a truly apolitical theory of judicial power. In light of the furious debate over the purported “minimalism” of John Roberts, severing theory from politics may prove impossible.