Looking Off the Ball: Constitutional Law and American Politics
Oxford Handbook on Public Law, Forthcoming
36 Pages Posted: 9 Aug 2007
"Looking Off the Ball" details how and why constitutional law influences both judicial and public decision making. Treating justices as free to express their partisan commitments may seem to explain Bush v. Gore*, but not the judicial failure to intervene in the other numerous presidential elections in which the candidate favored by most members of the Supreme Court lost. Constitutional norms and standards generate legal agreements among persons who dispute the underlying merits of particular policies under constitutional attack. The norms and standards explain constitutional criticism, why only a small proportion of the political questions that occupy Americans are normally resolved into constitutional questions, and how legislatures by making constitutionally "safe" choices may immunize their decisions from judicial scrutiny. Constitutional law structures those constitutional controversies that do take place. Constitutional debates are often quite different from other political debates because constitutional norms and standards require constitutional decision makers treat as important phenomena of less interest to policy makers and attach little significance to those phenomena crucial to the underlying policy decision. Political scientists who neatly divide the justificatory world into legal norms and policy norms implicitly take sides in hotly contested interpretive debates and overlook the most important differences between elected officials and justices as constitutional decision makers.
* 531 U.S. 98 (2000).
Keywords: law, politics, judicial behavior, constitutional law
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