Supreme Court Decision-Making and the Social Construction Process: Continuity in a Polarized Age

Abstract

The contributors to this volume offer thought-provoking questions about my contributions to the study of constitutional law, individual rights, and American political development. In particular, numerous contributors ask a similar question: are we careening toward a “rights Armageddon” under the modern Roberts Court? This article argues that the Supreme Court today operates as it always has—it engages in bidirectional decision-making with a critical social construction process at its core. The Court applies polity and rights principles to the lived lives of persons in social, political, and economic reality. These applications—social constructions—become memorialized in precedent, and the Court, through an analogical process, compares these social constructions to polity and rights principles and lived lives presented in the case before it. Through this process, rights develop. Although the recent confirmations of Justices Neil Gorsuch and Brett Kavanaugh have caused many commentators to question whether the Court is headed toward a reactionary era, the Court is unlikely to begin rolling back significant progressive rights decisions, like Casey, Lawrence, and Obergefell. Instead, because bidirectionality is intrinsic to the Court, the Court will continue making decisions through the social construction process, and the staying power of these decisions will depend on how meaningfully the Court engages in the bidirectional social construction process so critical to its institutional role in driving American political development.