Policy, Precedent, and Power: A Positive Theory of Supreme Court Decision-making

Abstract

Although it can be argued that legislative and judicial decision-makers preside over similar issue areas, the effects of the rules emanating from the two types of policy-makers can differ dramatically. The absence of consideration of this difference represents a major shortcoming in the literature. When Congress passes a law, that law affects everyone in the same way. That is, any individual engaged in an activity regulated by the law is constrained in the same way. Any law that discriminates arbitrarily among individuals is considered to be unconstitutional. Judicial policy decisions, however, need not demonstrate this universalistic quality. The actual decision handed down in a particular case is binding only on the participants in the case. The effect that the ruling will have on other