Institutions, rulemaking, and the politics of judicial retrenchment

This article examines the efforts of political and legal actors to scale back access to the courts and judicial authority in the decades since the rights revolution of the 1950s and 1960s. Despite the importance and consequences that such efforts have had for the judicial system and rights protections in the United States,public law and American Political Development (APD) scholars have only begun to study this phenomenon within existing theories of institutional change. Through an examination of efforts to reform procedural rules that govern courtroom access, adjudication, and potential remedies, this article presents evidence that both builds on and pushes this scholarship in new directions. In contrast to law and APD scholars who have promoted a regime politics model of judicial authority that focuses on the interests of national elected officials and Supreme Court majorities, this article finds that actors pursuing retrenchment come from both within and outside the judiciary, evidencing a robust set of individuals and interests (far beyond judges and politicians) who might be considered judicial actors. Building on and complicating current understandings of the politics of retrenchment, moreover, I find that the groups involved in judicial retrenchment change significantly over time, are motivated by more than partisan backlash, and that the availability of malleable institutional rules enhances the likelihood of their success. Finally, I find that the processes of judicial retrenchment are distinctive but not static, unfolding in a series of methods for attempted change that are not only path dependent, but also path breaking.