Cardozo wrote that sometimes he had trouble deciding cases then the answer would just come to him while walking down the street - -and then he had to put that insight into the legal framework we accept as proper. Surely the same is true today on major cases and even in cases where the result is certain for extra-legal reasons (dislike of women, dislike of Catholics, dislike of big government, dislike of Obama, dislike of homosexuals, etc.) the court takes pains to put the case into the generally accepted discourse structures we are all so familiar with. Indeed, this discourse style has even been cited in cases as one of the institutional constraints on pure personal bias-driven results.
Few closely contested cases are decided for the reasons the court gives. Does anyone really buy secondary effects analysis as not-content-based? yet the court used that as the fig leaf to cover its foray so as to try to mess with standard freedom of expression jurisprudence as little as possible in other contexts. Steve On Jul 11, 2014, at 3:06 PM, Stephen M. Feldman <sfeld...@uwyo.edu> wrote: > I suspect that scholars make statements like Tribe’s—that discussing the > justices’ religions should be off limits—because they are stuck in a > traditional either/or: Either Supreme Court decision making is all law (the > traditional law professor view) or all politics (the traditional political > science view). To me, either ‘pure’ approach—pure law or pure politics—leads > to absurdities. And politics, here, can be defined broadly to include > religious and cultural backgrounds. > > One can reasonably sketch out a middle ground, where the justices sincerely > interpret legal texts but are nonetheless influenced by politics (including > their religious backgrounds). Sisk and Heise have published several empirical > studies on the influence of religion on judicial decision making, and I > summarized the empirical work related to this area several years ago. > Empiricism, Religion, and Judicial Decision Making, 15 Wm. & Mary Bill Rts. > J. 43 (2006). If anyone might be interested, I have a new piece forthcoming > on the law-politics relationship. Supreme Court Alchemy: Turning Law and > Politics Into Mayonnaise, _ Geo. J. L. & Pub. Pol’y _ (forthcoming). > > Step > > > > * * * * > Stephen M. Feldman > Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct > Professor of Political Science > University of Wyoming > 307-766-4250 > fax: 307-766-6417 > sfeld...@uwyo.edu > Author of Neoconservative Politics and the Supreme Court: Law, Power, and > Democracy > and Free Expression and Democracy in America: A History > -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://sdjlaw.org "I am in Birmingham because injustice is here. . . . Injustice anywhere is a threat to justice everywhere." Martin Luther King, Jr., (1963)
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