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Mark Tushnet, Judicial Time: A Research Note, SSRN (Sept. 5, 2025).


Abstract: This Research Note is an effort to lay out some ways of thinking about the relation between political time and judicial time. Political time identifies two general categories of time periods: periods in which a political regime or political order is consolidated and relatively stable, and periods in which a political regime has become unstable and seems to be in transition to some new, as yet ill-defined new regime (or, possibly, to the reconsolidation of the seemingly decayed one). I believe that we have decent general descriptive theories of Supreme Court behavior when a political regime is consolidated and seemingly stable, but that descriptive theories about the Court’s behavior during “transitional” periods are under-developed. The Research Note’s contribution is to identify some lines along which such theories might be developed. The analysis is highly speculative, identifying possibilities and offering anecdotal examples as illustrations. Future research into the matters discussed here will undoubtedly deepen, qualify, and refute some of those speculations.