Examines policy vs. precedent conflict, politics and ideology in the nomination process, legal formalism, "stare decisis", including a case study of Justice Antonin Scalia as a eloquent dissenter.
Written in 1999; 2,475 words; 3 sources; $ 87.95
Paper Summary:
In modern times the general view of the Court has come to be that its members act to advance their policy preferences, rather than in a "mechanical" way to uphold precedent, as was widely assumed before the 1940s (Epstein and Knight, 1998, 24). Whatever may have actually been the case at various times in the past, it is difficult to resist a policy-preference view of the contemporary Court.
From the Paper:
"In modern times the general view of the Court has come to be that its members act to advance their policy preferences, rather than in a "mechanical" way to uphold precedent, as was widely assumed before the 1940s (Epstein and Knight, 1998, 24). Whatever may have actually been the case at various times in the past, it is difficult to resist a policy-preference view of the contemporary Court. Apart from the internal evidence of a statistical nature drawn from the Court's own record (Epstein and Knight, 1998), consideration must surely also be given to the overtly political and ideological nature of the modern nomination and hearing process, particularly as it has developed since 1980. To be sure, presidents have from the adoption of the Constitution taken the opportunity to name their political allies to the Court, surely with some confidence (or at least hope) that once ..."
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