The contemporary legal landscape reflects a recurring historical cycle: Democrats are increasingly gravitating toward judicial restraint while conservatives have now embraced a renewed model of judicial activism.

Stephen M. Rich, the vice dean for academic research and intellectual life at the Gould School of Law said in an interview with the Daily Trojan that these shifts are not new — rather, they are part of a recurring political pendulum swing in judicial behavior.

Tracing back to the New Deal era reveals that both Democrats and Republicans have alternated between judicial activism and restraint, contingent upon the institutional branch they aim to empower. 

Starting with the New Deal, Democrats supported judicial restraint to preserve legislative autonomy. The invention of economic liberties created constitutional barriers to political action, striking down laws aimed at basic protections like labor rights and public health.

However, during both the Reagan and Bush administrations, conservatives embraced judicial restraint to halt the expansion of individual rights, as these judges opposed New Deal policies, which they viewed as reflecting an elite legal culture.

That anti-elitism is still present in the current Supreme Court. Now, we are not only witnessing an inversion of the Reagan-era dynamic — where conservatives once advocated for judicial restraint and liberals were seen as more activist —  but also a return to the judicial politics of the New Deal era.

This return, Rich suggests, is driven by similar motivations to before: Conservatives in power on the court view certain forms of expansive legislation advanced by Democrats as requiring judicial constraint.

The Trump era, however, represents a profound disruption of this historical trajectory. President Donald Trump embodies a “post-constitutional” ethos that prioritizes the expansion of executive authority while actively undermining the legitimacy of judicial review. In this context, concerns about Trump’s executive overreach have only intensified. 

While it is commonly assumed that conservative judges are unified in support of Trump, this prevailing assumption obscures the ideological nuances within the judiciary. 

Most Republican-appointed judges — including many Trump appointees — are pre-Trump conservatives whose judicial philosophies do not necessarily align with Trump completely. There are cases, as Rich noted, where a Trump appointee ended up being far less deferential to his administration than a Bush-appointed judge.

Both Roberts and Justice Samuel Alito may have anticipated the ideological turn that now defines the Court’s conservative majority. 

Yet among the three pre-Trump conservatives, Rich identified Roberts as the most likely to constrain Trump. Unlike Justice Clarence Thomas, who Rich described as more of a one-off, Roberts has demonstrated a strong commitment to first the rule of law, and second judicial integrity, Rich said.

Roberts has publicly repudiated Trump’s attacks on the judiciary and calls for the impeachment of a judge, signaling his enduring concern with preserving the rule of law. 

Nonetheless, Roberts’ philosophy is far from unidimensional. Roberts wrote the majority opinion in Trump v. United States, a decision that articulated an unprecedented concept of presidential immunity. This ruling aligned with Roberts’ broader jurisprudential commitment to preserving the presidential powers in the Constitution while curbing the influence of the unelected administrative state. 

Rich described this shift as a transformation in modern conservatism — one aimed at “reshap[ing] the executive.” He noted that Roberts remains focused on limiting the administrative state while keeping the court from “policing the president.”

Beyond the Supreme Court, federal circuit courts present a more consistent and underappreciated form of resistance. Many appellate judges appointed by Ronald Reagan, George H.W. Bush and George W. Bush remain guided by traditional constitutional frameworks that often diverge from Trump’s vision of executive power. This resistance is significant given that the Supreme Court hears only a limited number of cases, so circuit court decisions often represent the final word on contentious issues.

These dynamics suggest that Trump’s vision of unchecked executive authority may face meaningful resistance — not only from liberal judges, but also from conservative jurists. In this moment of democratic uncertainty, we as citizens must recognize that the judiciary still holds the power to check executive overreach — and demand that it does so.