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Unpublished Paper
CONTROVERSIAL FIVE-TO-FOUR SUPREME COURT DECISIONS AND THE MAJORITY OF ONE
ExpressO (2013)
  • Steven I. Friedland
Abstract

Five-to-Four Supreme Court decisions in controversial cases have sparked public backlash in recent years, which has served to reframe the decisions as partisan politics. While judicial decision-making is designed to follow the doctrine of stare decisis, the view that Supreme Court justices have become hemmed in by their ideologies – with perhaps the notable exception of the swing vote of Justice Anthony Kennedy -- has been popularized in the media and blogs. While the Court’s decisions might be intersubjective, meaning bounded by moveable and socially constructed understandings, the real danger is for the justices to feed the perception that the Court is indeed governed by ideology over objectivity. This article tracks the significant catalysts in recent years that have propelled the intersubjective narrative, including the enhanced social media coverage of justices, the judicial nomination process, the fewer number of Supreme Court cases briefed and argued, and the core issues decided by the Court in such cases as Roe v. Wade, Bush v. Gore, and Citizens United v. Federal Election Commission. The article argues that the justices can and should be intentional in distinguishing their jurisprudence and overall conduct from partisan politics, thereby diminishing claims of illegitimacy.

Keywords
  • five-to-four Supreme Court decisions
Disciplines
Publication Date
February 6, 2013
Citation Information
Steven I. Friedland. "CONTROVERSIAL FIVE-TO-FOUR SUPREME COURT DECISIONS AND THE MAJORITY OF ONE" ExpressO (2013)
Available at: http://works.bepress.com/steven_friedland/9/