Politics and Authority in the U.S. Supreme Court

80 Pages Posted: 27 Mar 2020

See all articles by Joshua B. Fischman

Joshua B. Fischman

University of Virginia School of Law

Date Written: 2019


Public discourse on the Supreme Court often focuses on the divide between the liberal and conservative Justices. There has been a second persistent divide in the Court, however, which has been largely overlooked by scholars, the media, and the public. This second divide has arisen most often in cases involving the jury trial right, the Confrontation Clause, the Fourth Amendment, punitive damages, and the interpretation of criminal statutes. This Article argues that this divide represents disagreements among the Justices over how to determine the limits of the authority of legal actors, particularly juries, executive officials, and trial judges. On one side of this divide are “authority formalists,” who interpret power-allocating laws literally and seek clear boundaries of authority. On the other side are “authority functionalists,” who interpret such provisions in a more flexible and purposive manner. Using classical multidimensional scaling, this Article demonstrates that this divide can be derived naturally from the disagreement rates among the Justices and has been robust and significant over the last two decades. Although political values strongly influence the Court’s decisions, legal principles play a larger role than many observers acknowledge. However, the two-dimensional issue space also creates the potential for many social choice pathologies to arise in the Court’s collective decision making.

Suggested Citation

Fischman, Joshua B., Politics and Authority in the U.S. Supreme Court (2019). Cornell Law Review, Vol. 104, 2019, Available at SSRN: https://ssrn.com/abstract=3547396

Joshua B. Fischman (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States

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