Readers of the blog know that in my two books I talk about "the generational cycle," which refers to a robust pattern in American constitutional development that repeats itself (with some variations) every thirty years or so. In my view, we are in the initial phase of a new turn of this cycle, and the Court decision on Thursday tends to confirm that hypothesis.
Here are the basics of the cycle. Periodically a popular movement arises that seeks to overthrow long-established constitutional principles or apply them in a novel way. The movement takes the White House in an election that marks the beginning of a realignment that establishes that party as the majority for the next generation. The victors then push through a transformative statute (or series of statutes). These proposals lead to especially bitter debate in Congress and spur a counter-mobilization by those who see the movement-party as dangerous. Eventually, the transformative law (or laws) come before a Supreme Court dominated by Justices of the opposite party. Sometimes the Court issues a sweeping opinion nullifying these enactments and throwing down the gauntlet to the political branches, in an act that I call a "preemptive opinion."
Sometimes the Court upholds the revolutionary statute, but does so in a contorted way that is meant to signal to legal elites and voters that something extraordinary is going on and that voters must take action now to stop this runaway train. A presidential election follows that, if won by the President's party, confirms the realignment and consolidates the new regime.Read it at Balkinization
The Generational Cycle -- 2012
by Gerard N. Magliocca | Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law