The Democratic Party's Court

[Mark Graber]

Might there be a third (fourth?) position here between doing law on the
one hand and making policy or making stuff up on the other.  Perhaps
many justices might be understood as implementing a particular
constitutional vision that is associated with a particular political
faction.  Implementing a particular constitutional vision might be
different from implementing policy agendas in that a) only some aspects
of a coalition's agenda are deemed appropriate for the judiciary and b)
the distinction between what policies are advanced by different
institutions reflects, in part, jurisprudential judgment rather than
simply utilitarian calculus.

MAG

>>> Mark Tushnet <mtushnet at law.harvard.edu> 06/20/06 2:59 PM >>>

And, in response to Sam Bagenstos's question about what's at stake, I
take it
that underlying the discussion is a question about the extent to which
we think
that the justices are fairly described as "doing law" as against
"implementing
policy agendas [related to party platforms]" -- or what the balance
between
those two descriptions should be.  And underlying that might be a
question
about whether "implementing policy agendas [related to party
platforms]" might
be a more, or less, respectable description of what they're doing than
"making
stuff up."
-- 
Mark Tushnet
William Nelson Cromwell Professor of Law
Harvard Law School
Areeda 223
Cambridge, MA  02138