The Paradoxes of a Unified Judicial Philosophy: An Empirical Study of the New Supreme Court, 2020-2022

38 Constitutional Commentary 1 (2023)

55 Pages Posted: 6 Aug 2022 Last revised: 20 Jan 2023

See all articles by Victoria Nourse

Victoria Nourse

Georgetown University Law Center

Date Written: January 15, 2023

Abstract

The 2021 Supreme Court Term ended with a bang, yielding blockbuster cases making headlines. But what of the rest of the cases? This is the first major paper to examine the “Trump effect,” meaning the influence of three Justices appointed by President Trump who all share a “unified” judicial philosophy. In a two-year project, starting from 2020, when Justice Barrett ascended to the Court, to the end of June 2022, this article reviews 124 cases and over 300 opinions. There is both good and bad news for the court’s new “unified” judicial philosophy. History and text are both upwardly mobile in the courts’ opinions. History appears in at least one opinion in a majority of cases and in a significant minority of unanimous cases, text is the end of the matter. However, there is also cause for worry. We found significant evidence of what Prof. Adrian Vermeule (2022) has called “disruption,” meaning that history and text are used to disrupt prior doctrines despite claims that originalism seeks stability and neutrality. Call this the “disruption” paradox. Similarly, we found that the self-described textualist Justices—presumably the best textualists in the world—do not agree upon the text most of the time. And when they disagree about text, they end up doing what they say that they should not do, engaging in policy reasoning. Call this the “consequentialist paradox.” The paper argues that proponents and critics of the court's new interpretive philosophy should seek to resolve these quandaries. [An 80 page appendix supporting these claims is posted separately]

Keywords: constitution, legislation, interpretation, empirics

Suggested Citation

Nourse, Victoria, The Paradoxes of a Unified Judicial Philosophy: An Empirical Study of the New Supreme Court, 2020-2022 (January 15, 2023). 38 Constitutional Commentary 1 (2023), Available at SSRN: https://ssrn.com/abstract=4179654 or http://dx.doi.org/10.2139/ssrn.4179654

Victoria Nourse (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

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