In Defense of a Political Court

By Terri Jennings Peretti | Go to book overview

CHAPTER 5
The Virtues of Political Motive in
Constitutional Decisionmaking: A Constrained
and Consensus-Seeking Court

VALUE-VOTING is not merely the arbitrary expression of a justice's idiosyncratic views. Rather, it is the expression and vindication of those political views deliberately “planted” on the Court by an ideology-conscious and politically accountable president and Senate. Thus, value-voting promotes political representation.

However, additional democratic benefits flow from policy motivation on the part of Supreme Court justices. Policy-motivated justices must do more than merely vote their personal political preferences. They must be attentive as well to political checks on the Court and the political conditions necessary for policy success. Thus, as this chapter will argue, two additional and interrelated benefits attend policy motivation on the part of Supreme Court justices. First, policy motivation activates and makes effective a variety of political checks on the Court, thereby helping to reconcile discretionary constitutional decisionmaking with democratic values. Second, the activities and behaviors that a policy-motivated justice is required to perform constitute a form of consensus building, a valuable democratic function.


The Behavioral Consequences of
Policy Motivation

Let us look more carefully at how a policy-motivated justice might behave and evaluate the legitimacy and desirability of such behavior. Fortunately, we need not begin this endeavor with a clean slate. Walter Murphy has written the classic analysis of policy motivation on the part of a Supreme Court justice and its behavioral consequences. 1 Because of the importance of his conceptual framework for this chapter, it will first be explained.

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