"Does Philosophy Deserve a Place at the Supreme Court?"
This Comment demonstrates that policy judgements are not masked by philosophical references, nor do philosophers play any crucial role in contentious judicial decisions. Neomi Rao’s study is flawed for many reasons: incomplete content analysis, poor assessment of data, and an inadequate definition of philosophy. She should be criticised for hypocritically praising Court philosopher references in some instances and not others, especially with regard to the Court’s early development. This Comment searched unsuccessfully for an instance where philosophers were cited just once in controversial cases regarding racial integration, capital punishment’s abolition and re-legality, and the 2000 Presidential election. Philosophers are peculiarly absent from major controversial cases. Rao claims the Court’s majority decisions avoided the “Philosophers’ Brief” because the philosophers’ argument was grounded in theory, not substantive legal argument surrounding issues of judicial precedent. This Comment challenges Rao’s use of “philosophy” as something entirely abstract and steeped in metaphysics. Philosophy is presented as a large umbrella covering diverse sub-fields, two of which are philosophy of law and political philosophy. These sub-fields are of great use to law. Thus, the Court has not illegitimately used philosophers to support personal policy preferences. Nor is the use of philosophy incommensurable with judicial decision-making.
This originally appeared in the Rutgers Law Record, Vol. 27, No. 1, 2003
One of the most surprising things about Rao's original article is that it has been used several times by more conservative lawyers to make "the case" for keeping philosophers out of judicial decisions. However, my claim is that they are truly grasping at straws: not only do Plato and friends count for nothing in the legal decisions they don't like --- thinking now particularly of Row v Wade --- but their arguments simply don't hold up to scrutiny, as I demonstrate at some length. Better to claim the opponent won for the wrong "reasons" (e.g., using Plato's Republic) than overlook the fact the opponent's decision actually respects judicial precedent as that record is recorded --- with all of its attendant peculiarities --- than one's own view, I suppose.........
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