Progressive cause lawyers face a defining challenge in responding to an entrenched conservative Supreme Court majority that is systematically dismantling liberal precedent. An intuitive solution—Court reform—confronts insurmountable political barriers and likely constitutional challenges from the very institution it seeks to modify. Rather than pursuing continued affirmative constitutional litigation or embracing conventional reform efforts, this Article proposes that liberal cause lawyers adopt “resistance through restraint”—a calculated disengagement from the Roberts Court and federal appeals courts aimed at denying these bodies vehicles to develop conservative constitutional and statutory doctrine.
The Article develops this theory by examining its foundations in cause lawyering history and by offering concrete guidance for implementation. Because the Court cannot initiate cases sua sponte and depends on litigants to bring justiciable controversies, strategic restraint capitalizes on a fundamental vulnerability in the Roberts Court’s ability to advance its conservative agenda. Drawing from a rich tradition of strategic forbearance, the Article identifies five key principles underlying this theory: (1) proactively evading Supreme Court review through procedural maneuvering and strategic settlement; (2) containing adverse precedent by accepting circuit-level losses; (3) delaying seemingly inevitable rulings to preserve immediate rights and build mobilization capacity; (4) leveraging incrementalism and percolation in alternative forums; and (5) avoiding the jurispathic power of paradigmatic adjudications that can kill competing constitutional visions.
This realpolitik reorientation offers a more pragmatic path forward than continued pursuit of institutional reforms or engagement with a Court engineered to reject progressive claims. By redirecting reformist impulses from trying to reshape an institution over which liberals have minimal structural control to reforming tactical choices over which they have complete agency, resistance through restraint provides a viable if imperfect framework for progressive constitutionalism in an era of conservative judicial dominance.
To read this Article, please click here: Resistance Through Restraint: Liberal Cause Lawyering in an Age of Conservative Judicial Hegemony