Josh Fischman

Politics and Authority in the U.S. Supreme Court

PUBLISHER
Cornell Law Review
DATE
2019
 

Abstract

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.

Citation

Joshua Fischman, Politics and Authority in the U.S. Supreme Court, 104 Cornell Law Review 1513-1592 (2019).
 

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