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Tue Jun 6 14:46:24 PDT 2006
First, the analogy of protocol to Rawls and Nozick may be problematic. A better analogy might be the prescriptions of textualism first, restraint second (let us call that forumulary A), versus the alternate prescription of process-oriented utilitarianism (formulary B). Certainly that captures the two books on the subject (Scalia's and Breyer's).
But even if you are right that what ultimately drives supreme judging is Rawls v. Nozick, I would be careful to make exception for the following areas: (1) where law is more textually determinate; (2) where jurisprudential regimes emerge; (3) where fear of sanction applies (gay marriage); (4) where give-and-take is needed for majority coalitions; (5) where crisis and cost make it too difficult (pragmatism); (6) where the world changes (Roosevelt... terrorism?); and (7) where non-directional justices regard Rawls and Nozick indifferently. Besides, if justices are motivated about law, why wouldn't they be motivated about political philosophy? Wouldn't conservatives be Rawlsian when the issue is liberty for guns, property, Christian speech, abortion protesters, campaign donations, etc.? Of course, to be fair, we don't have an empirical model that ever attempted account for Rawls and Nozick preferences, but it would be good to see one.
Dr. Sean Wilson, Esq.
Penn State University
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