The Constrained Court: Law, Politics, and the Decisions Justices Make

By Michael A. Bailey; Forrest Maltzman | Go to book overview

Chapter 1
INTRODUCTION

IMMEDIATELY FOLLOWING the Supreme Court’s ruling in Bush v. Gore (2000), George Washington University law professor Jeffrey Rosen expressed shock that the justices in the majority did “not even bother to cloak their willfulness in legal arguments intelligible to people of good faith.” Rosen believed that the decision “made it impossible for citizens of the United States to sustain any kind of faith in the rule of law as something larger than the self-interested political preferences of William Rehnquist, Antonin Scalia, Clarence Thomas, Anthony Kennedy, and Sandra Day O’Connor” (2000).

Rosen was not alone within the legal academy. Over five hundred law professors wrote a public letter “as teachers whose lives have been dedicated to the rule of law” to condemn the Court’s decision (Berkowitz and Wittes 2001). They argued that the majority of justices had acted as “political proponents for candidate Bush, not as judges.” One signatory “deplored the fact that one of his primary teachings to his students over a 40-year career in constitutional law—that the U.S. Supreme Court acts as a nonpartisan institution despite differing judicial philosophies—had been rendered null and void by the actions of the five justices who stopped the count” (Dickenson 2001).

Not all Court critics think justices are right-wing partisans. Conservatives, too, routinely attack the Court for pursuing political, not legal, aims. Onetime Supreme Court nominee and conservative icon Robert Bork characterizes the Supreme Court as “an active partisan on one side of our culture wars” (quoted in Boot 1998, vi). Conservative columnist Thomas Sowell claims “Supreme Court decisions suggest that too many justices are not satisfied with their role, and seek more sweeping powers as supreme policy-makers, grand second-guessers or philosopher-kings” (2010).

Many political scientists see politics on the Court as business as usual. Much of the discipline has long embraced the notion that judicial outcomes primarily reflect judicial policy preferences (see discussions in Friedman 2006; Tamanaha 2010). Indeed, seven years before Bush v. Gore political scientists Jeffrey Segal and Harold Spaeth predicted that “if a case on the outcome of a presidential election should reach the Supreme Court,… the Court’s decision might well turn on the personal preferences

-1-

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