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September 6, 2023 @ 12:00 pm - 1:30 pm CDT

Speaker Series: Gregory Elinson

Law, Northern Illinois University College of Law
Why Judicial Review is Not Inherently Anti-Progressive
Gregory Elinson
Hybrid: Virtual/In-Person (ABF Offices, 750 N Lake Shore Drive, 4th Floor Chicago, IL)

“Over the past decade, prominent progressive voices in the legal academy have reached a new consensus. Robust, American-style, judicial review is no balm to progressive causes — rather, it is inherently anti-progressive. The judiciary, they say, has regularly interfered with legislative and executive efforts to protect minority rights and remedy economic inequality. Thus, they conclude, progressives ought to stop defending judicial review and instead devote their energies to eliminating (or limiting) it. Embedded in their critique are two related empirical claims: first, that the judiciary in general and the Supreme Court in particular have been consistently less progressive than the other branches; and, second, that landmark progressive rulings in cases like Brown v. Board of Education and Roe v. Wade were not, in and of themselves, meaningful contributions to the progressive cause.

This Article considers the evidence in support of these claims and argues that judicial review’s progressive critics are wrong on both counts. For one, we contend that critics underestimate just how anti-progressive American politics, independent of judicial intervention, have usually been. Revisiting the key cases on which the progressive critique is based, we find little evidence for the proposition that the judiciary has consistently been more anti-progressive than the elected branches. Rather, we suggest that few durable progressive coalitions have ever been latent such that we can say with any confidence that, but for judicial intervention, they would have surfaced in Congress or the executive. For another, the Article finds little evidence that progressive judicial interventions have been mostly sizzle, with little substance. To the contrary, we find empirical support for the proposition that landmark progressive rulings in cases like Brown and Roe mattered quite a bit. Brown, recent historiography makes clear, eased passage of federal civil rights legislation, while Roe established a far more permissive abortion regime than would have been feasible to achieve through the political process.

Stepping back from this empirical inquiry, the Article takes an analytic turn. What is it about the judiciary’s role in American politics that judicial review’s progressive critics have missed? We have two answers. First, we think that progressive critics offer a too-rosy account of the elected branches’ progressivism. Throughout American history, both major political parties have effectively colluded to keep the rights of disfavored minorities off the political agenda. And drawing on an array of scholarship in law, political science, and history, we find little evidence that electoral incentives consistently favor progressivism. Second, we think there is better evidence to suggest that legal elites, when freed of the pressures of coalition assembly and maintenance that constrain the elected branches, have in fact been more progressive than Congress and the president. In earlier eras of American history, we attribute this phenomenon to legal elites’ commitment to a stripped-down, common-law constitutionalism. In more recent decades, we attribute this phenomenon in large part to the role of educational polarization, which has tended to make the elite bar—and thus the pool of actual and potential judges and justices—relatively more open to progressive arguments.”

To register, contact Sophie Kofman at skofman@abfn.org


Gregory Elinson is an Assistant Professor of Law at Northern Illinois University College of Law. He is a public law scholar with wide-ranging interests in constitutional and administrative law and legislative and judicial procedure. Much of his research concerns how partisan politics and political polarization have shaped the separation of powers. His work has been published or is forthcoming in Vanderbilt Law Review, Emory Law Journal, and the University of Pennsylvania Journal of Constitutional Law, as well as several leading peer-reviewed social science journals, including Law & Social Inquiry and Studies in American Political Development.

Before coming to NIU in 2022, Professor Elinson was a Climenko Fellow at Harvard Law School and an associate in Kirkland & Ellis’s Chicago office, where his practice focused on commercial and appellate litigation. Greg clerked for Judge David Barron on the U.S. Court of Appeals for the First Circuit and Judge Gary Feinerman on the U.S. District Court for the Northern District of Illinois. He holds a J.D. from Stanford Law School, a Ph.D. in Political Science from the University of California, Berkeley, and a B.A. from Harvard College.