Jack Balkin - Partisan Entrenchment

Balkin and Levinson argue that constitutional revolutions in judicial doctrine occur through a process called partisan entrenchment. The party that controls the White House can stock the federal courts with new judges and Justices who have views on key constitutional issues roughly similar to those of the President. This shifts the median Justice on the Supreme Court and changes the complexion of the lower federal courts, which, in turn, eventually affects constitutional doctrine. If enough new judges are appointed in a relatively short period of time, changes will occur more quickly, producing a constitutional revolution. For example, a constitutional revolution occurred following the New Deal because Franklin Roosevelt was able to appoint eight new Supreme Court Justices between 1937 and 1941. Balkin and Levinson's theory contrasts with Bruce Ackerman's theory of constitutional moments, which argues that constitutional revolutions occur because of self-conscious acts of democratic mobilization that establish new standards of political legitimacy. Balkin and Levinson view partisan entrenchment as roughly but imperfectly democratic; it guarantees neither legitimate nor correct constitutional interpretation.