Julie Novkov on Anthony Kreis’s *Rot and Revival: The History of Constitutional Law in American Political Development*

Since the late twentieth century, scholars of constitutional law employing the tools of American political development (APD) have argued that understanding constitutional law requires analyzing constitutional development.[1] This agenda both focuses on how courts (including but not limited to the United States Supreme Court) participate as institutions in structuring and limiting the national state and interprets the courts’ institutional collaborations and struggles alongside other governmental and non-governmental institutions. In doing so, these scholars (to be fully transparent, “we”) have addressed three audiences as interlocutors and foils. First are scholars of American political development who have followed the tendency within political science to sideline the courts as key agents. Second are political science courts scholars who embrace behavioral and strategic models, defining judicial behavior in the same terms as other forms of political behavior without attending to the institutional context for judges and judging. And third are legal scholars, who, while intensely interested in constitutional history, often focus on doctrine and judging, evaluating constitutional law and development against different normative expectations for judging as a purely legal practice.

Constitutional development is a robust literature that identifies and debates periodization, the dynamics and causes of continuity and change, the role of state and federal courts, and the relationship between constitutional development and other developmental dynamics. Practitioners of constitutional development have consistently argued not only that their perspectives are intrinsically valuable, but also that they can enrich other analyses of law, politics, and constitutionalism. Both individually and structurally, they have invited conversations.[2]

Constitutional development conversations, however, often occur in the equivalent of a dark anteroom alongside a much larger cocktail party where other groups gather around separate buffet and drink arrangements. In the central conversation, the participants only occasionally intermingle, at times only to castigate their fellow party attendees as bean counters or naïve idealists who ignore the political nature of law and judging.

Anthony Kreis, a legal scholar teaching in a law school, invites a more holistic conversation, encouraging constitutional law scholars to incorporate American political development and a broader recognition of institutional dynamics in their understandings. His 2024 book, Rot and Revival: The History of Constitutional Law in American Political Development, races through constitutional history from 1824 through 2022 using political regimes as an organizing framework.[3] This historical overview challenges the standard American constitutional law narratives that largely identify constitutional periods by the characteristics and commitments of particular Courts, like the Marshall Court, the Taney Court, or the Warren Court. He neither attributes complete agency to the courts in driving constitutional development nor embracing the Dahlian position that the courts mostly just follow electoral politics. Rather, he describes how courts alternatively collaborate with, follow, or modestly resist regime politics as they play out through congressional and executive branch actions. He argues that “constitutional law is the byproduct of regime principles, institutional relationships, and the time-sensitive ordering of policy developments that produce new politics, causing the dominant regime to innovate and evolve.” (4) The Supreme Court mostly serves a disciplinary role, bringing other institutions and players into alignment with the dominant regime, but if it migrates too far from a cohesive and empowered regime, it faces the choice of capitulating or experiencing external redirection.

From APD, Kreis relies specifically on the ideas of political time and path dependence, accounting for his interest in the rise and fall of political regimes. By fronting political time, he shifts away from debates over whether the Court is engaging in countermajoritarianism, and when such behavior is legitimate. Key turning points are pivotal elections rather than landmark cases; he identifies a series that serve as markers of the birth of new political regimes that reshape constitutional politics, with the courts participating in complex ways to channel these developments. He hews to the APD recognition of law and legal decision-making as political enterprises that nonetheless take place within specific institutional boundaries.

Kreis identifies four broad regimes tied to critical elections: Jacksonianism (1828), the Civil War and reformation era (1860), the New Deal (1932), and Reaganism (1980). This aligns with Jack Balkin’s periodization in his recent The Cycles of Constitutional Time, though in 2020 Balkin argued that the Reagan regime was “cracking up before our eyes”.[4] With the benefit of two more years, Kreis reads the Court’s rulings overturning abortion rights and ending racial affirmative action in higher education as consolidating and advancing the Reagan regime.

The slim volume marches through constitutional history using this framework. The presentation is likely to be eye-opening to individuals who have thought of constitutional history primarily as a question of Court-produced constitutional jurisprudence. Likewise, the analysis of political regimes and their relationship to constitutional regimes contributes productively to broader conversations about political development, reminding that constitutional development plays a critical role in shaping and legitimizing political development.

Kreis’s overview will hopefully provoke a broader conversation about how constitutional development can enrich understandings of constitutional law and political change. Kreis’s analysis fits comfortably within the broader wing of APD beholden to Karen Orren and Stephen Skowronek, attending to institutions and their formal mechanisms. This body of scholarship questions “how those mechanism structure and regulate the expression of political power,” and Kreis’s integration of the courts into this framework alongside other formal institutions underlines their constitutive engagement with rules to “refract or give form to political power.”[5] Such a conversation will provoke useful questions about the connection of courts to regimes, regime maintenance, and regime decline.

As Pamela Brandwein notes, however, historical-interpretive constitutionalists raise prior questions about the nature of judicial institutions, taking doctrine seriously as the material source of missions: “a sense of purpose, role, or office, defined in part by distinctive jurisprudential traditions.”[6] David Bateman, writing about APD more generally, describes the approach “at its best” when it provides “the experience of seeing or conceiving of discrete moments or broader patterns in US political history in a new way.”[7] He describes APD approaches not as tools but rather as “analytical sensibilities that can guide how we think,” driving scholars to create “rich, historically sensible, and broadly qualitative descriptive reconstruction of a world” that  necessarily precedes causal analysis.[8] Historical-interpretive scholars particularly represent this orientation, recognizing that “institutions have both material and ideological or discursive dimensions” and resisting pressure to view institutions and discourse as oppositional.[9] Such analyses, rather than focusing on causal identification, privileges understanding the meaning of institutions and the discursive practices that empower or limit them—or in the case of the courts, constitute them.

These perspectives enrich approaches like Kreis’s. They underline the importance of ideas in development, which requires looking beyond regime boundaries to trace development. Kreis (as does Balkin) identifies Jacksonianism’s 1828-1860 span as resting on “localist, white supremacist populism” as the order’s lodestone, claiming that it destabilized the Democratic coalition through westward expansion, generating contradictions that the Court’s interventions worsened. While this analysis echoes Mark Graber’s diagnosis of the collapse of the antebellum republic, Graber’s reading of Dred Scott traces its jurisprudential roots deeper than the rise of Jacksonian democracy.[10]

Kreis’s analysis of the Republican order prevailing from the Civil War through the beginning of the Great Depression introduces readers unfamiliar with constitutional development to the value of unifying multiple political and jurisprudential strands.[11] As Republican political imperatives cohered in the late nineteenth century, the national party’s choice to abandon African American equality, midwife the hegemony of large-scale capitalism, defend against socialism, and advance American settler colonialism and imperial ambition empowered a politically effective coalition. This coalition advanced and legitimated these agendas jurisprudentially, primarily under Chief Justice Fuller and then to a lesser extent under White and Taft.

Kreis’s focus on the consolidation of this order necessarily downplays the struggles of the period and the legacies they left for the development of the American state. As Brandwein’s work shows, the Waite Court’s direction to federal authorities to shape and implement comprehensive Reconstruction gave way to a far more hostile outlook on the part of the Fuller Court, dovetailing with the cultural rise of Lost Cause narratives that achieved national elite consensus in the twentieth century.[12] The free labor vision that grounded Lochner also encompassed the Court’s 1906 ruling in Hodges v. United States that the federal government could not enforce anti-peonage laws against abusive southern employers and its 1908 ruling that liberty of contract had to give way before the special needs of women, who required protection in the workplace.[13] This period also saw the rise public interest organizations that used strategic litigation to pursue policy agendas, including the NAACP and the ACLU but also less recognized organizations like the National Consumers’ League and the Chinese Six Companies. The conjunction of legal advocacy for rights and legal realism contributed to a wave of filings integrating law and social science that persists to the current day.

Like Balkin, Kreis sees the period between 1932 and 1980 as a regime.[14] Describing “the New Deal’s evolution on racial equality and civil rights” as “misunderstood,” he highlights early, halting efforts to incorporate racial discrimination in the New Deal transformation and then discusses the importance of state-level party organization and the agenda of preserving democracy, first against fascism and later as part of the Cold War. Looking further reveals ground-level political shifts that predated the watershed election of 1932. Kimberley Johnson describes the collaborations between white progressives and elite Black reformers seeking to moderate the Jim Crow south beginning in the 1910s that drove Black empowerment that would eventually reject reform.[15] The path to the New Deal’s national statebuilding both in terms of administrative power and capacity was prepared in part by a wide variety of statebuilding experiments initiated during this period.[16] And as Kreis recognizes, focusing on national-level political development and the rise of the national administrative state obscures the interesting and dynamic story of state-level shifts and comparisons; southern states took alternative roads toward democratization, and state-level struggles over interracial intimacy revealed ideological shifts within states and across regions.[17]

Reagan’s election capped a large-scale partisan reorganization around race and region and confirmed a significant shift in how many Americans think about government.[18] Kreis’s discussion of this period centers electoral politics, enriching narratives that focus exclusively on detailing the trajectory from the Burger Court’s cautious retrenchment to the Roberts Court’s full-throated transformationalism. While conservatism was entangled with resistance to full racial equality as far back as the 1940s, the conservative order that gained political power in the 1980s did not consolidate it in the courts until at least Rehnquist’s stint as Chief Justice and saw the regime agenda advance far more strongly under Chief Justice Roberts.[19]

Other constitutional development scholars have underlined the conjunction of conservative legal mobilization and the federal courts’ engagement with it. More than a straightforward retrenchment or backlash, this shift has encompassed the creation of new protections for large-scale capitalism and business interests, the rise of a conservative rights movement around reformulations of property, free speech, and religious expression guarantees, and a revitalization of federalism in certain policy spheres.[20] Kreis captures the doctrinal trajectory well in his brief discussion of the road from Roe to Dobbs (though for this policy area, retrenchment arguably started with Maher v. Roe in 1977, not 1980).[21] Constitutional development scholars’ sensitivity to institutional orders, however, produced some debate in the late 1990s and early 2000s over whether some precedents, particularly Roe, might prove resistant to retrenchment.[22] This discussion within the interpretive wing of the constitutional development community illustrates its focus on discourse and institutional norms within the judiciary. While in retrospect it overstates the durability of rights guarantees, it does inform ongoing conversations about shifts in equal protection and due process and the determined focus required by anti-abortion advocates to achieve the reversal of Roe.

In short, Kreis’ s lively and engaging work introduces insights from American political development to scholars who study constitutional law and development primarily or exclusively by focusing on courts and doctrine. With the value of considering courts as institutional and political players within a larger system established, the door is open to additional conversations between legal scholars and scholars pursuing interpretive analysis of developmental questions. Such conversations can usefully inform not only analysis of past developmental concerns but also engagement with current questions about the power of the federal courts to support, channel, control, or redirect the second Trump presidency and whatever comes after.

[1] Mark Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7, no. 1 (1993): 35–73.

[2] Engagement efforts include participation in APSA’s Law and Courts section, securing a separate allocation of panels focused on constitutional law and jurisprudence at APSA’s annual meeting, the annual Tulsa Law Review book review issue, coedited by mixed political science and law team to produce high-quality book reviews that connect constitutional development and legal scholarship, and the various constitutional law “Schmoozes” spanning more than two decades at law schools at the University of Wisconsin-Madison and the University of Maryland-Baltimore and other locations, to note just a few.

[3] Anthony Kreis, Rot and Renewal: The History of Constitutional Law in American Political Development (Oakland, CA: University of California Press, 2024).

[4] Jack Balkin, The Cycles of Constitutional Time (New York, NY: Oxford University Press, 2020), 16.

[5] Pamela Brandwein, “Law and American Political Development,” Annual Review of Law and Social Science 7 (2011): 189.

[6] Brandwein, 190.

[7] David Bateman, “The Enduring Value of American Political Development,” Clio: Newsletter of Politics & History 34, no. 1 (2025): 21.

[8] Bateman, 23.

[9] Brandwein, “Law and American Political Development,” 192–93.

[10] Mark Graber, Dred Scott and the Problem of Constitutional Evil (New York, NY: Cambridge University Press, 2006), 66–72.

[11] Kreis, Rot and Renewal: The History of Constitutional Law in American Political Development, 44–81.

[12] Pamela Brandwein, Rethinking the Judicial Settlement of Reconstruction (New York, NY: Cambridge University Press, 2011); Grace Elizabeth Hale, Making Whiteness: The Culture of Segregation in the South, 1890-1940 (New York, NY: Pantheon Books, 1998).

[13] Brandwein, Rethinking the Judicial Settlement of Reconstruction; Julie Novkov, Constituting Workers, Protecting Women: Gender, Law and Labor in the Progressive Era and New Deal Years (Ann Arbor, MI: University of Michigan Press, 2001).

[14] Balkin, however, characterizes the regime as New Deal and Civil Rights. Kreis, Rot and Renewal: The History of Constitutional Law in American Political Development, 82–103.

[15] Kimberley Johnson, Reforming Jim Crow: Southern Politics and State in the Age before Brown (New York, NY: Oxford University Press, 2010).

[16] Carol Nackenoff and Julie Novkov, eds., Statebuilding from the Margins: Between Reconstruction and the New Deal (Philadelphia, PA: University of Pennsylvania Press, 2014).

[17] Robert Mickey, Paths Out of Dixie: The Democratization of Authoritarian Enclaves in America’s Deep South, 1944-1972 (Princeton, NJ: Princeton University Press, 2015); Julie Novkov, Racial Union: Law, Intimacy, and the White State in Alabama, 1865-1954 (Ann Arbor, MI: University of Michigan Press, 2008); Peggy Pascoe, What Comes Naturally: Miscegenation Law and the Making of Race in America (New York, NY: Oxford University Press, 2009).

[18] Kreis, Rot and Renewal: The History of Constitutional Law in American Political Development, 104–43.

[19] Joseph Lowndes, From the New Deal to the New Right: Race and the Southern Origins of Modern Conservatism (New Haven, CT: Yale University Press, 2008).

[20] Kevin McMahon, A Supreme Court Unlike Any Other: The Deepening Divide Between the Justices and the People (Chicago, IL: University of Chicago Press, 2024); Steven Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton, NJ: Princeton University Press, 2008); Jefferson Decker, The Other Rights Revolution: Conservative Lawyers and the Remaking of American Government (New York, NY: Oxford University Press, 2016); Amanda Hollis-Brusky, Ideas with Consequences: The Federalist Society and the Conservative Counterrevolution (New York, NY: Oxford University Press, 2019).

[21] Maher v. Roe, 432 U.S. (U.S. Supreme Court 1977).

[22] Ronald Kahn, “Social Constructions, Supreme Court Reversals, and American Political Development: Lochner, Plessy, Bowers, but Not Roe,” in The Supreme Court and American Political Development, ed. Ronald Kahn and Kenneth Kersch (Lawrence, KS: University Press of Kansas, 1996), 67–116.