I propose to defend and explore three claims in this Essay. First, there is very little actual “law” in federal constitutional law in the United States, especially with respect to cases that end up at the Supreme Court. There, the Court operates as a kind of super-legislature, albeit one with limited jurisdiction. The jurisdiction is limited in two important ways: first, the Court can only pass on issues that are brought before it; and second, the Court is constrained, to some extent, by its past decisions and by constitutional and legislative texts. The problem, however, is that those constraints underdetermine the Court’s decisions in most cases, so the Court essentially makes its final choice among the legally viable options based on the moral and political values of the Justices, and not simply on the basis of legally binding standards. The latter claim is, in part, a jurisprudential thesis about what constitutes “legally binding standards.” I shall defend the first claim by reference to the most plausible account of the nature of law—the legal positivist theory developed by H.L.A. Hart and Joseph Raz. . . .
Constitutional Law, Moral Judgment, and the Supreme Court as Super-Legislature,
66 Hastings L.J. 1601
Available at: https://repository.uchastings.edu/hastings_law_journal/vol66/iss6/6