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

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 “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…

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