Supreme Court Alchemy: Turning Law and Politics into Mayonnaise

How do law and politics intertwine in Supreme Court adjudication? Traditionally, in law schools and political science departments, scholars refused to mix law and politics. Law professors insisted that legal texts and doctrines controlled Supreme Court decision making, while political scientists maintained that political ideologies dictated the justices'votes. In the late twentieth century, some scholars in both disciplines sought to combine law and politics but still conceived of the two as distinct. They attempted to stir law and politics together, but ended with an oil-and-water type of mix; law and politics settled apart. The best approach, as presented in this Article, is an institutional interpretivism, positing that politics is necessarily an integral part of legal interpretation and, therefore, Supreme Court decision making. Institutional interpretivism has significant ramifications. For scholars, it suggests that future research should explore the law-politics dynamic. The potential of this approach is demonstrated with an analysis of the Affordable Care Act Case. Meanwhile, for Supreme Court justices, institutional interpretivism suggests that the justices will continue to decide cases as before, by sincerely interpreting legal texts and doctrines. Politics is so deeply embedded in the judicial process that, in most instances, the justices do not consciously consider their political ideologies. Yet, institutional interpretivism reveals that the justices naturally decide in accord with their politics. Law and politics are joined so cohesively, in a stable emulsion, that the justices do not even see their politics at work. INTRODUCTION .......................................... 58 I. THE PURISTS ....................................... 61 A . A ll Law ....................................... 61 B. A ll Politics ..................................... 65 II. A LITTLE Brr OF THIS, A LITTLE BIT OF THAT .................... 69 A.' Together-Like Oil and Water ...................... 70 B. An Emulsion ................................... 72 1. What Is the Law-Politics Emulsion? . . . . . . . . . . . . . . . 73 * Jerry W. Housel/Carl F. Arnold Distinguished Professor of Law and Adjunct Professor of Political Science, University of Wyoming. I thank Scot Powe, Mark Tushnet, and Howard Gillman for their comments on earlier drafts. © 2014, Stephen M. Feldman. 58 THE GEORGETOWN JOURNAL OF LAW & PUBLIC POLICY 2. The Emulsification of Law and Politics: Institutional Interpretivism ............................... 78 III. RAMIFICATIONS OF INSTITUTIONAL INTERPRETIVISM ............... 83 A. For Scholars ................................... 83 B. For Supreme Court Justices ........................ 93 IV . CONCLUSION ........................................ 95