Six Notions of ‘Political’ and the United States Supreme Court

Abstract

Six different notions of ‘political’ are commonly used in discussions of the US Supreme Court. All six are familiar, but the distinctions among them are seldom carefully drawn. The six are: (1) purely definitional, in the sense that the Supreme Court, as an appellate court of last resort inevitably authoritatively allocates values; (2) empirical, in the sense that litigants use the Court to try to achieve their political purposes; (3) influence seeking, in the sense that the justices have a natural desire to prevail in arguments within the court; (4) prudential, in the sense that the justices frequently consider the probable consequences of their decisions; (5) policy-oriented, in the – usually pejorative – sense that justices are said to use the Court and the law as a cover for pursuing their own policy and other goals; and (6) systemic, in the sense that the Court's decisions frequently, as a matter of fact, have consequences for other parts of the American political system. These six notions are considered in the context of recent abortion decisions.