This symposium piece explores the rise and fall of legal process theory as well as the scholarship of former Warren Court and early Burger Court clerks who nearly killed it. It also suggests that there could be a revival of a process-based judicial restraint based on a new generation of late Burger Court/early Rehnquist Court clerks-turned-academics who came of age during the mid-1980s. These law clerks rejected judicial supremacy and adopted popular constitutionalism and other democratic approaches to constitutional interpretation. Popular constitutionalism is inspired by the same faith in the democratic political process as the judicial restraint advocated by James Bradley Thayer, Felix Frankfurter, and Alexander Bickel.
The Former Clerks Who Nearly Killed Judicial Restraint,
Notre Dame L. Rev.
Available at: https://scholarship.law.nd.edu/ndlr/vol89/iss5/6