Open Access Senior Honors Thesis
Department or School
There are many theories behind Supreme Court decision-making that are primarily descriptive or normative. Descriptive theories attempt a hermetic explanation that sufficiently applies to all past decisions, and normative theories seek to create a rubric or method, also dependable, for how the justices of the Supreme Court should make decisions. Normative theories can be highly porous and problematic because they involve metaethical concerns like defining “the good.” Essentially, we must try to make “good” decisions all the time, but that ignores the problem of what “good” really means. The design of this essay is such that we will not deal with whether or not the Court maintains philosophical consistency through analyses of what makes an act good. The important point concerning normative decision-making is that justices, and various other scholars alike, feel that there is an objective good that can be reached through erudition. The “objective good” is, in fact, jurisprudence. Yet, again, we have not solved the metaethical problems, for no clear definition of “the good” in law actually exists. Many believe that the only way to maintain proper jurisprudential behavior is to “uphold the letter of the law.” Though ‘upholding the letter of the law’ sounds perfectly noble and acceptable and concurrent with jurisprudence, the expression is an illusion. It represents a notion or idea of propriety, by claiming to be tangible and practicable, but it unfortunately fails to produce dependable methodology for decision-making. To assume that such a method is possible is to impose a burden on the justices of principled and perfect propriety. It assumes that, if the justices can follow this guideline, they shall never falter in establishing strong jurisprudence. This aligns with many normative theories of judicial decision-making that assume that Supreme Court justices can make absolutely rational decisions. Since many normative theories rely on metaethical dilemmas that produce even more questions and ambiguities, understanding that Supreme Court justices make decisions through bounded/subjective rationality, not absolute/objective rationality is fundamental. Considering the bounded rationality framework, the Court is not perfectly or absolutely rational, and thus must rely on other tools to make legitimate decisions. One way the Court, and other scholars alike, can enhance a particular normative theory is by looking to accurate descriptive theories about the short-term and long-term effects of past decisions. Ultimately, there is a co-dependency and reciprocity in any erudite theory of decision-making, whether descriptive or normative. If one claims that historically the Court makes preferential decisions, that is decisions that rely on choice and discretion rather than precedent (Spaeth and Segal 1999), he can then ask if whether or not such decision-making has worked or failed, and in what context, such as legal or political. If preferential decisions are desirable—like Ronald Dworkin who contends that the Supreme Court must adapt constantly to reach the “best possible” decision—then one can say that the Court should make decisions preferentially. The two areas of decision-making theory are not necessarily connected, meaning the association is not a priori, but they do, in fact, benefit each other. This thesis will not focus on either approach definitively, because without conjoining both theoretical fields, one risks myopic results. The theories it discusses are the Supreme Court as republican schoolmaster, which is both descriptive and normative, and judicial realism, which is primarily descriptive, but still has proponents for its normative application.
Hoorelbeke, Luke, "Supreme Court bound: An introduction concerning the intrinsic subjectivity of Supreme Court decision-making" (2005). Senior Honors Theses and Projects. 8.