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9 - Noninterpretive Decisions

Published online by Cambridge University Press:  26 January 2021

Donald L. Drakeman
Affiliation:
University of Notre Dame, Indiana
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Summary

A new argument about interpretation appeared in the twentieth century: the idea that Supreme Court justices should make their own judgments about the best national policy, and then write their opinions in language that gives the impression that the decision represents an interpretation of the Constitution. This chapter argues that decision science says that the Supreme Court justices are not well-suited for making good policy decisions, and that, if they do so, they should be transparent in their reasoning. For thousands of years, the public and its elected representatives have looked to the courts to provide answers to difficult and important issues involving interpretation, something for which judges are well-trained and well-placed to do. When that traditional process metamorphizes into pure political policymaking, the justices need to defend it as such, and not put at risk the Court’s essential role as the authoritative interpreter of legal texts.

Type
Chapter
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The Hollow Core of Constitutional Theory
Why We Need the Framers
, pp. 178 - 196
Publisher: Cambridge University Press
Print publication year: 2021

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  • Noninterpretive Decisions
  • Donald L. Drakeman, University of Notre Dame, Indiana
  • Book: The Hollow Core of Constitutional Theory
  • Online publication: 26 January 2021
  • Chapter DOI: https://doi.org/10.1017/9781108751001.010
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To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Dropbox.

  • Noninterpretive Decisions
  • Donald L. Drakeman, University of Notre Dame, Indiana
  • Book: The Hollow Core of Constitutional Theory
  • Online publication: 26 January 2021
  • Chapter DOI: https://doi.org/10.1017/9781108751001.010
Available formats
×

Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Noninterpretive Decisions
  • Donald L. Drakeman, University of Notre Dame, Indiana
  • Book: The Hollow Core of Constitutional Theory
  • Online publication: 26 January 2021
  • Chapter DOI: https://doi.org/10.1017/9781108751001.010
Available formats
×