Nothing New Under the Sun: The Law-Politics Dynamic in Supreme Court Decision Making

Recent events have seemed to inject politics into American judicial institutions. As a result, many observers worry that the Supreme Court, in particular, has become politicized. According to this view, the Justices should decide cases in accordance with the rule of law and be unmoved by political concerns. These worries arise from a mistaken assumption: that law and politics can be separate and independent in the process of judicial decision making.

But at the Supreme Court (as well as in the lower courts, for that matter), decision making arises from a law-politics dynamic. Adjudication in accord with a pure rule of law is a myth. Both law and politics shape legal interpretation and adjudication. Yet, it is worth emphasizing, the ongoing debate over whether Supreme Court decision making is either law or politics is thoroughly political.

This Essay elaborates on these assertions and explores their ramifications.