Constitutional Process

by Stearns, Maxwell L.

• ISBN13: 9780472088683
• ISBN10: 0472088688
• Edition: Reprint
• Format: Paperback
• Copyright: 2002-05-01
• Publisher: Univ of Michigan Pr

Summary

This is the first comprehensive analysis of how the collective nature of Supreme Court decision making affects the transformation of the justices' preferences into constitutional doctrine. Analyzing the Supreme Court from the perspective of social choice theory, Maxwell L. Stearns offers new insights into Supreme Court decision making that have profound implications for understanding the outcomes in a number of cases and the resulting doctrinal development within constitutional law which traditional analyses have proven ill-equipped to explain. The book models several important process-based Supreme Court rules, including outcome voting, the narrowest-grounds rule,stare decisis, and justiciability, with a particular emphasis on standing. These doctrines have each had a significant impact upon the evolution of modern constitutional law, including but not limited to the following areas: affirmative action, school desegregation, racial gerrymandering, obscenity, and abortion. Each model is presented in nontechnical language with several concrete illustrations drawn from recent Supreme Court case law. The book offers a new understanding of two apparently paradoxical situations: first, cases in which there are separate majorities on specific issues in the case that suggest, logically, that there should be a majority for the dissenting result; and second, cases in which discrete minorities--as opposed to the apparent majority--control the identification and resolution of dispositive case issues. In addition, the book sheds new light on why the Court employsstare decisis, even though the doctrine grounds the evolution of legal doctrine on the order in which cases are presented and decided, and on how the modern standing doctrine ameliorates the incentives for interest groups to time the litigation of cases in a way that will exert a disproportionate influence over the direction of constitutional doctrine. This book will appeal to scholars of the Supreme Court or judicial decision-making. It should also be of interest to students of social choice and of law and economics who have not previously considered the Supreme Court or constitutional law as fertile ground for their disciplines. Maxwell L. Stearns is Professor of Law, George Mason University School of Law.

Table of Contents

Foreword	ix
Preface and Acknowledgments	xiii
Table of Contents	xvii
Part I Framing the Inquiry
Decisional and Doctrinal Anomalies in Constitutional Law	3	(38)
An Introduction to Social Choice	41	(56)
Part II Social Choice Models of Supreme Court Decision Making
Static Constitutional Process: How Individual Cases Are Decided	97	(60)
Dynamic Constitutional Process: How Groups of Cases Are Decided	157	(58)
Part III Historical and Case Evidence
The Burger and Rehnquist Courts in Historical Context	215	(34)
Standing in the Burger and Rehnquist Courts: The Cases	249	(56)
Part IV Summary and Conclusion
Summary of Argument	305	(10)
Afterword	315	(10)
Notes	325	(82)
Bibliography	407	(8)
Indexes	415