Between Politics And Precedent

Andrew Sullivan —  Aug 7 2012 @ 8:27am

by Matthew Sitman

Reviewing a new book on the use of precedent in Supreme Court rulings, Adrian Vermeule provides an insightful primer on how the Court makes decisions:

It isn’t helpful to say, as some legal scholars do, that “politics” determines what the Court does. There is a sense in which that is true, but the category of “politics” is too crude. It includes too many things that are not alike, ranging from the grandiloquent constitutional discourse of the 1936 court-packing debate to a Chicago mayoral election. Even if, as I have suggested, Chief Justice Roberts’s decision was not plausibly driven by lawyerly parsing of the language in previous Commerce clause decisions, this does not mean that it was the same sort of decision as Mitt Romney’s decision to oppose the Affordable Care Act. Between “politics” in that sense and legal precedent there is this third category of convention. An official who breaches a convention will be thought to have violated the unwritten rules of the game, not merely to have made just another move within the game.