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Durham Law School

Staff

Publication details for Professor Thom Brooks

Brooks, Thom (2003). Does Philosophy deserve a place at the Supreme Court? Rutgers Law Record 27(1): 1-17.

Author(s) from Durham

Abstract

This Comment demonstrates that policy judgements are not masked by philosophical references, nor do philosophers play any crucial role in contentious judicial decisions. Neomi Rao's study is flawed for many reasons: incomplete content analysis, poor assessment of data, and an inadequate definition of philosophy. She should be criticised for hypocritically praising Court philosopher references in some instances and not others, especially with regard to the Court's early development. This Comment searched unsuccessfully for an instance where philosophers were cited just once in controversial cases regarding racial integration, capital punishment's abolition and re-legality, and the 2000 Presidential election. Philosophers are peculiarly absent from major controversial cases.

Rao claims the Court's majority decisions avoided the "Philosophers' Brief" because the philosophers' argument was grounded in theory, not substantive legal argument surrounding issues of judicial precedent. This Comment challenges Rao's use of "philosophy" as something entirely abstract and steeped in metaphysics. Philosophy is presented as a large umbrella covering diverse sub-fields, two of which are philosophy of law and political philosophy. These sub-fields are of great use to law. Thus, the Court has not illegitimately used philosophers to support personal policy preferences. Nor is the use of philosophy incommensurable with judicial decision-making.