Gregory Elinson (Northern Illinois University – College of Law) has posted Partisan Teamsmanship and American Constitutionalism (51 Law and Social Inquiry, forthcoming) on SSRN. Here is the abstract:
It is often suggested that in a constitutional democracy like that of the United States, doing law is distinct from doing politics and so judges ought to put aside their partisan interests when rendering decisions. This essay contests this view on two fronts. Bringing together Mark Graber’s Punish Treason and Reward Loyalty: The Forgotten Goals of Constitutional Reform after the Civil War (2023) and Laura Kalman’s FDR’s Gambit: The Court-Packing Fight and the Rise of Legal Liberalism (2022), I observe that during both Reconstruction and the New Deal, it was generally accepted by political elites inside and outside the judiciary that the dominant party ought to make constitutional decisions with their partisan consequences well in view. Working from this history, the essay then considers how this kind of partisan teamsmanship might apply to contemporary constitutional politics in the United States. It concludes that so long as parties remain institutional vehicles for vindicating core beliefs and principles held by the public, partisan teamsmanship by judges may be less dangerous to our constitutional system than contemporary critics of the Supreme Court presume.
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