The Generational Cycle — Part Two
Yesterday I talked about the theory that is the foundation of my two books. The basic idea is that constitutional law follows a generational pattern that unfolds in a similar way about every thirty years. (As a side note — the pattern holds pretty well for British politics and can even be applied to what’s going on Iran (thirty years between the fall of the Shah and now), although in a dictatorship there are obviously powerful means available to crush dissent.)
The key inflection point in this cycle is when one generation supplants another. As scholars from Robert Dahl to Keith Whittington have said, these transitional periods typically see the greatest friction between the political branches and the Court. Why? Because the Court is still controlled by what Justice Robert H. Jackson once called the “rejected regime.” Thus, the Justices are likely to challenge the initiatives and assumptions of the new political leadership.
If you accept the proposition that Obama’s election was one of these generational turning points, then we should expect increasing conflict between the Justices and the President over the next few years. In my examination of prior encounters (between Jackson and Marshall, between Taney and the Republicans, between the Justices and the Populists, or the Old Court and FDR), one point that emerges is that the Court typically starts out cautiously. When this Court decides the Voting Rights Act case in a few weeks, it will probably offer up a strong defense of federalism that runs against the grain of the Obama Administration but does not directly criticize the President. Open resistance by the judiciary, attacking a central piece of the new President’s agenda, doesn’t start for a few years, either because polarization increases or desperation grows because “things are going too fast.”
There is another point about generational inflection points, though, that is less obvious. Almost every leader of a new constitutional generation must eventually face down strong opposition from within his own ranks. Jackson fought with Calhoun, Lincoln had his “Team of Rivals,” FDR was challenged from the left by Huey Long, etc. Obama tried to preempt this by pulling his biggest rival, Hillary Clinton, into the Cabinet, but as unemployment increases someone on the left will probably become a thorn in the President’s side and argue that “he’s going too slow.”
I have a draft paper on SSRN about all of this, but I must admit that I’m not really happy with it right now. Lots of work to be done.