Everyone suspects that Supreme Court justices’ own views of policy play a part in their decisions, but the size and nature of the part is a matter of vague impression and frequent dispute. Do their preferences exert some pressure at the margin or are they better viewed as the mainsprings of decision? The latter claim, identified with legal realism, has been lent some support by political scientists who point out that some justices regularly vote for or against certain kinds of claims (for example, under the Fourth Amendment), or that votes in some areas are broadly predictable according to a single “ideal point” that tries to sum up each justice’s preferences, or that justices who dissent from a decision often will not acquiesce to it in future cases. The reason these studies haven’t made much of an impression in the legal academy probably is that lawyers and scholars sense many reasons why judges’ behavior may follow predictable patterns, not all of them related to their own preferences. Some justices may have ideas about interpretation that happen to produce outcomes friendly to one side or another as byproducts; and a judge’s public reputation as a “conservative” or “liberal,” to which some of the political science work gives weight in explaining votes, likewise might arise because the judge’s interpretive approach happens to yield results that conservatives or liberals like.
The Online Companion
& Other Current Events
Sign Up to Join Our Mailing List