Nothing New Under the Sun: The Law-Politics Dynamic in Supreme Court Decision Making

22 Pages Posted: 3 Jun 2018

Date Written: May 18, 2018

Abstract

Recent events have seemed to inject politics into American judicial institutions. As a result, many observers worry that the Supreme Court, in particular, has become politicized. According to this view, the Justices should decide cases in accordance with the rule of law and be unmoved by political concerns. These worries arise from a mistaken assumption: that law and politics can be separated and independent in the process of judicial decision making. But at the Supreme Court (as well as in the lower courts, for that matter), decision making arises from a law-politics dynamic. Adjudication in accord with a pure rule of law is a myth. Both law and politics shape legal interpretation and adjudication. Yet, it is worth emphasizing, the ongoing debate over whether Supreme Court decision making is either law or politics is thoroughly political. This Essay elaborates on these assertions and explores their ramifications.

Keywords: Law-Politics Dynamic, Supreme Court, Legal Interpretation, Adjudication, Law and Politics

Suggested Citation

Feldman, Stephen Matthew, Nothing New Under the Sun: The Law-Politics Dynamic in Supreme Court Decision Making (May 18, 2018). Pepperdine Law Review, Vol. 44, No. p 43, 2017. Available at SSRN: https://ssrn.com/abstract=3180736

Stephen Matthew Feldman (Contact Author)

University of Wyoming - College of Law ( email )

P.O. Box 3035
Laramie, WY 82071
United States

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