I'm jumping into this thread rather late but wanted to suggest a different point of view. Many cases get to the Supreme Court only because the circuits have split on an issue. Presumably that means that there are decent arguments on both sides of the issue. One might expect in such cases that ideology would play a more determinative role in a Justice's vote than it would play if the Court were reviewing a random sampling of cases. Thus a recognition of the role of ideology need not be as much in tension as it might seem with a view that most cases can be decided on neutral principles.
A personal note: this is the argument I used several years ago to explain to my father -- who is very conservative politically and is not a lawyer -- why certain Justices' votes seemed to be predictable. His cynical view was that it was all a matter of the Justices' personal views. After considering my argument, he moderated his cynicism. I assume this argument is made somewhere in the political science literature. Perhaps someone will have a cite. Mark S. Scarberry Pepperdine University School of Law [EMAIL PROTECTED] -----Original Message----- From: Frank Cross [mailto:[EMAIL PROTECTED] Sent: Tuesday, May 20, 2003 9:30 AM To: [EMAIL PROTECTED] Subject: Re: ideological decsions Well, I would suggest: 1. The vast majority of people who believe that most Supreme Court decisions are ideological use the term as meaning value-driven and not as meaning partisan. They simply argue that this value-driven agenda trumps the materials of the law or the use of "neutral principles." 2. While there's nothing wrong with scrutinizing particularized cases for ideology, that's not a very good way to test the thesis (anymore than looking at a batter's performance in a few individual games would be a good measure of his season-long hitting). At 09:21 AM 5/20/2003 -0700, you wrote: >A few days ago, someone on the list observed that the vast majority of >constitutional law decisions are "ideological." Presumably some smaller >portion of such decisions are nonideological. I'm wondering if we could >explore this point. Initially, I'm curious as to what is meant when one >describes a decision as ideological. I assume it means something other >than value-driven since all decisions are to some extent value-driven. >I take it that ideological connotes something like partisanship, but >perhaps not quite as harsh. Honestly, I'm not sure. So, for starters, >what is an ideological decision as opposed to a non-ideological >decision? Perhaps some examples would help. I'll suggest three cases >that might advance the discussion: Texas v. Johnson (flag burning), >Cook v. Gralike (Election Clause/ballot notation re support for term >limits), and Zelman v. Simmons Harris (school vouchers). Which, if any, >of these cases can be usefully described as ideological? > >Allan Ides > Frank Cross Herbert D. Kelleher Centennial Professor of Business Law CBA 5.202 University of Texas at Austin Austin, TX 78712
