New Deal & Warren Court Eras

As to the second conservative theme, realism, at its core, revolted against the conservative notion of the Constitution as 'formal' law. Constitutional decisionmaking by a priori reasoning was disparaged; for the realists, decisionmaking required investigation of empirical fact and evaluative opinion.⁸⁶ Instead of articulating the principles of right and justice that should restrain judicial discretion, constitutional scholarship should unmask the socioeconomic forces that influenced lawmaking and encourage the judiciary to take account of the interplay of these forces in rulemaking.⁸⁷ From this perspective, the celebrated 'Brandeis brief'⁸⁸ was a weapon of realist constitutionalism; it responded to the call for a jurisprudence based less on constitutional text than on constitutional interests, less on legal principle than on social consequences of legal action.

The liberal legal scholarship of the progressive and realist eras had a decisive effect on the more orthodox constitutionalists. Many important proponents of traditional constitutionalism during the progressive era were sympathetic to the reform positions and critical of the conservative ideology of the federal judiciary. Although ultimately devoted to the regime of objective and rational legal principles, they recognized that knowledge of the workings of political institutions was important to sound judicial rulemaking.⁸⁹

During the New Deal and the Warren Court eras, the realist approach lost ground to the call for a more traditional doctrinal defense of an activist and socially progressive federal judiciary. Although ultimately the movement gave way to the current mode of liberal constitutional jurisprudence, the progressives and realists served a valuable function in their time. They broke the conservative intellectual barriers to a liberalism that would revitalize constitutional government with political action.⁹⁰ If the lessons of the progressives and realists are studied carefully, ⁹¹ they can serve an equally valuable function in our time. Such lessons can furnish a framework for answering the question facing contemporary liberal scholars: If the federal judiciary will be less responsive to liberal values, about what and to whom should the liberal direct his or her scholarship?

The example of the progressives and realists suggests that at least two tasks face liberal legal scholars. First, they need to open a dialogue with liberal political actors. Second, they need to reexamine the theoretical constructs supporting contemporary liberal legal thought.⁹² These suggestions already point in the direction of some future avenues for reconstructive criticism. The lessons of yesterday's liberal theorists encourage tomorrow's liberal thinkers to move beyond reactive scholarship.⁹³