Forgetting Nothing, Learning Nothing: Constitutional Scholarship and the Political Development of the Modern Supreme Court

by Calvin TerBeek

Abstract

Democrats and progressives tell themselves a rise-and-fall story about modern American constitutional development. A conservative Court predominated in the first few decades of the twentieth century—often referred to as the “Lochner Era.” That era gave way with the triumph of FDR’s New Deal via the Constitutional Revolution of 1937. FDR remade the Supreme Court, marking the triumph of legal liberalism. This liberalism was eventually worked pure by the Warren Court. If this was the rise, the story since then has been all fall. The declension starts with Richard Nixon, the fracturing of the New Deal coalition, and Ronald Reagan’s 1980 election. And, with the advent of the Roberts Court in 2005 and Trump’s election(s), the declension deepens with no end in sight.

This essay argues that the contribution of Ken Kersch’s early scholarship was to highlight the potential empirical pitfalls and blind spots of a story about the modern Supreme Court, which is often incomplete, and at certain points deeply so. Rather than summarize and recapitulate Kersch’s early scholarship, this essay leverages two short case studies that extend his critique of the standard story. These two developmental episodes fall on each end of the still predominant “rise and fall” story.