One of the great divides in American judicial scholarship is between legal scholars who take the justices at their word and assume that those words define the law and political scientists who dismiss all judicial arguments as smokescreens for partisan bias or wider political forces. Today’s guest has written a book that bridges that divide.

In Rot and Revival: The History of Constitutional Law in American Political Development (U California Press, 2024), Dr. Anthony Michael Kreis uses methods from history, law, and political science to theorize and document how politics make American constitutional law and how the courts affect the path of partisan politics. Understanding American constitutional law means looking at the relationship among dominant political coalitions, social movements, and the evolution of constitutional law as prescribed by judges. For Kreis, constitutional doctrine does not exist in a philosophical vacuum – it is a “distillation of partisan politics.”

Rejecting the idea that the Constitution's significance and interpretation can be divorced from contemporary political realities, Kreis uses tools from law, history, and American political development to explain how American constitutional law reflects the ideological commitments of dominant political coalitions, the consequences of major public policy choices, and the influences of intervening social movements. For Kreis, constitutional law is “best understood through the diachronic lens of American Political Development (APD) and the concept of political time. Kreis concludes that the courts have never been—and cannot be—institutions lying outside the currents of national politics.

Dr. Anthony Michael Kreis is assistant professor at Georgia State University College of Law where he teaches constitutional law and works at the intersection of law and American Political Development. He earned his undergraduate and law degrees at the University of North Carolina at Chapel Hill and Washington & Lee University, respectively, and his PhD from the School of Public and International Affairs at the University of Georgia.

Mentioned:

President Lyndon B. Johnson’s March 15, 1965 speech before Congress on voting rights
Keith E. Whittington’s Political Foundations of Judicial Supremacy and other works
Gerald Rosenberg’s The Hollow Hope: Can Courts Bring About Social Change?

Correction: Justices Sotomayor and Kagan were nominated by President Obama and Justice Jackson was nominated by President Biden.

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