In 2011, Orin Kerr published “An Equilibrium-Adjustment Theory of the Fourth Amendment.” He said: “The theory of equilibrium-adjustment posits that the Supreme Court adjusts the scope of Fourth Amendment protection in response to new facts in order to restore the status quo level of protection.” It’s a great article that I highly recommend.
I wonder whether something similar could be said for separation of powers in Justice Jackson’s Youngstown concurrence. He said there and elsewhere that part of the Court’s function was to maintain the equilibrium among the three branches. Justice Jackson then discussed new “facts” about presidency that were not present in 1787 (the party system, modern media platforms, and the President’s role as the head of state (which was implied to mean more after the Second World War). He then said that executive power should be read more restrictively in light of those new facts to maintain the status-quo.
The premise would have to be that there is some identifiable separation of powers baseline. This is easier to justify in the Fourth Amendment context because the text uses the word “reasonable” and there is a rich common-law background on searches and seizures. Separation of powers does not have a similar textual hook and must be more general in application by courts. Who is to say what the right balance is? Or why is that a judicial task? Youngstown was on firmer ground because the President was asserting dubious Article II power. But are there new facts since then that can support further evolution?