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I think this has to do with the words 'theory', 'conclusion' and 'rationalization'. In natural sciences, a theory is a set of hypotheses, along with their logi
by raincom 6y ago
I think this has to do with the words 'theory', 'conclusion' and 'rationalization'.
In natural sciences, a theory is a set of hypotheses, along with their logical consequences with the aid of auxiliary theories. This is not what judges to. They have a set of meta-principles(originalism, textualism, precedent, etc) and heuristics (for reasonableness, fairness, etc). They use them to come at a decision they favor. The difference between a Breyer and a Scalia is the way they assign weights to these heuristics and meta-principles to favor their decisions.
- nickff 6y agoI think you make a good point about justices existing along a spectrum of adherence to methodologies, but I think some judges and justices also choose to avoid the main issue when the 'heuristics' are at odds with their principles. The most obvious example of a serial-parrier is the current chief.
- raincom 6y agoRichard Posner is very upfront: he first decides, then finds rationale for that decision. Of course, the judge's role is to pick one decision among a range of possible decisions. As long as there is a section of public who supports that decision, all rationale judges provide make it appear non-arbitrary. This kind of explains why the same court ruled in opposing ways wrt segregation, etc.