Monday, September 8, 2014

White on Understanding Supreme Court Decisionmaking Historically

G. Edward White, University of Virginia School of Law, has posted Toward a Historical Understanding of Supreme Court Decision-Making, Denver University Law Review Online 91 (2014).  Here is the abstract:
An abiding challenge to historians of the Supreme Court of the United States is fashioning a methodology that adequately captures the significant changes in the Court’s decision making process over time without losing sight of the special role the Court and its justices play in American government and culture. Too often historical studies of the Court have suffered from anachronistic perspectives on the actions of justices or a failure to understand the Court’s distinctive deliberative protocols. This essay proposes a methodological approach designed to deal with, if not to completely surmount, those challenges.

The methodology is designed to simultaneously consider justices as historical actors, reflecting the distinctive attitudes and values of their times; as collegial decision makers, assuming roles and engaging in deliberations that flow from their being participants in an institution that makes its decisions collectively and requires a majority of its members to endorse its judgments; and as individual personalities, bringing with them to the bench their distinctive and idiosyncratic ways of conceptualizing and resolving legal and political controversies. By identifying these different ways of thinking about the performance of justices, and at the same emphasizing that judicial decision making, at any point in the Court’s history, is a blend of different variables, the approach seeks to avoid anachronism, excessive reliance on the formal justifications for decisions, and uninformed speculation about how the Court’s internal decision making process functions.

The essay concludes that although the proposed methodology may avoid some of the obvious pitfalls in approaching the Court’s decision making over time, the challenges of anachronism and bias remain endemic in any effort to recover accurate renditions of the Court and its justices.
Hat tip: Legal Theory Blog

1 comment:

Shag from Brookline said...

This excellent and short paper reminded me of my youth at either Braves Field or Fenway Park of the hawkers of scorecards in the stands yelling "Ya can't tell the players without a scorecard!" White's paper must be kept handy when reading a decision of the Court to understand the Court's processes at the time to determine the roles, if any, of the various Justices then on the Court in the rendering of the Court's decision. I imagine a lot of head shaking when White's "scorecard" suggests that draft opinions were not routinely circulated among the Justices before the Court made its decision. As White notes, there is more transparency since the mid 20th century But there's still much we don't know about how the Court comes to a decision, the problem being that even with White's scorecard, the "sausage" may not pass the constitutional smell test. Yes, I can "tell the players" with White's "scorecard," but we don't know what they do in their dugout/robing rooms.