Friday, January 21, 2011

Thom Brooks on "Does Philosophy Deserve a Place at the Supreme Court?"

. . . can be found here and was published in the Rutgers Law Record. An abstract:

"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."
 
The article may be of interest to those keen to learn more about the debates over whether US Supreme Court judges have relied too often and/or too readily to the authority of canonical figures in the history of philosophy. Some say "yes" - I believe the answer is a clear "no".

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