Legal Realignment

Richard M. Re

Professor, Harvard Law School.

I am grateful to many thoughtful commentators, including workshop participants at Stanford University, the University of Virginia, Wayne State University, Harvard University, and Boston College, as well as attendees at a presentation at Boston University and a panel at the AALS annual conference. This essay borrows some text and ideas from my keynote address at the 2024 National Conference of Constitutional Law Scholars. See generally Richard M. Re, The One Big Question (Feb. 26, 2024) (Nat’l Conf. of Const. L. Scholars Keynote Address) (available on SSRN). Many thanks to the organizers and attendees at that event. Finally, I am indebted to the editors of this journal.

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The United States is undergoing a legal realignment, in that salient legal views recently associated with the right are now being espoused by the left, and vice versa. The clearest example involves Chevron deference: a doctrine once championed by conservatives like Justice Antonin Scalia has now been overruled in Loper Bright v. Raimondo—over dissenting votes by all three of the Court’s liberals. Similar points can be made about standing, stare decisis, textualism, positivism, and more. The basic reason for this transformation is straightforward: legal ideologies in power favor discretion, whereas those out of power favor constraint. Conservatives now firmly control the federal judiciary, so they are gradually abandoning their prior posture of constraint, even as liberals adopt it. As a result, the formalism that characterizes today’s legal culture is coming to an end. In the meantime, the left and the right’s mutual repositioning is helping to preserve both a workable legal system and a degree of shared legal culture.

TABLE OF CONTENTS

The widely understood alignment between political ideology and legal methodology—conservativism and constraint versus liberalism and discretion—explains judicial behavior with diminishing accuracy. In this Essay, Richard M. Re describes a "legal realignment" comprising moves toward conservative discretion and liberal constraint at the U.S. Supreme Court. The Essay develops a model of ideological change at the Court by describing the tendency for governing coalitions and opposition parties to embrace discretion and constraint, respectively. The Essay continues by detailing the mechanisms through which individuals and generations of legal thinkers undergo ideological shifts before concluding with what the model portends for the U.S. judiciary.