Do Supreme Court Nominees Lie? The Politics of AdjudicationSouthern California Interdisciplinary Law Journal (2008)
AbstractWhen John Roberts and Samuel Alito testified during their Senate confirmation hearings, they promised to decide cases apolitically in accord with the rule of law. Yet, during their first terms on the Supreme Court, they repeatedly voted to decide cases consistently with their conservative political ideologies. One must wonder: did Roberts and Alito lie‘ This Essay answers this crucial question by critiquing the theories of Richard Posner and Ronald Dworkin, two of the most prominent jurisprudents of this era. While Posner and Dworkin have vehemently attacked each other, they both maintain that Supreme Court adjudication of hard cases is politics writ large: the justices self-consciously and expansively decide cases according to their political ideologies. From this perspective, Roberts, Alito, and other Supreme Court nominees either purposefully lie or are naively ignorant when they proclaim fidelity to an apolitical form of adjudication. But, as this Essay argues, Posner and Dworkin share a common error. Although they correctly recognize that Supreme Court adjudication is political, they mistakenly assume that it therefore must be writ large. Instead, it is politics writ small. Legal interpretation is never mechanical. The justices sincerely interpret and apply the law, but the justices’ political ideologies necessarily shape their interpretations of the relevant legal texts. Thus, in the typical case, the justices’ best interpretations of the law coincide with their respective political ideologies. Supreme Court adjudication as politics writ small largely obviates the need for a judicial politics writ large. One might, consequently, criticize Roberts’s and Alito’s interpretations of legal texts, like the Constitution, without necessarily questioning their integrity.
- Supreme Court Nominees,
- Political Ideologies,
- Legal Interpretation,
Citation InformationStephen M. Feldman. "Do Supreme Court Nominees Lie? The Politics of Adjudication" Southern California Interdisciplinary Law Journal Vol. 18 (2008)
Available at: http://works.bepress.com/stephen_m_feldman/18/