About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

86 Tul. L. Rev. 181 (2011-2012)

handle is hein.journals/tulr86 and id is 183 raw text is: ESSAY Legal Realism, Innate Morality, and the Structural Role of the Supreme Court in the U.S. Constitutional Democracy Karl S. Coplan* The classical rationale for judcial review of the constitutionality of legislative and executive acts is based on a deterministic assumption about the nature of constitutional legal rules. By the early twentieth century howeve; American legal realists persuasively questioned the detenninacy oflaw in general and posited that hdeterminate cases were decided byjudicial intuitions of fairness. Social science research has discovered that self-identified liberals and conservatives predictably place different relative values on differnt shared moral intuitions. At the same time, neurological research suggests that humans and pnmates implement decisions before the cognitive parts of the bram are even aware that the subject has made a decision- potentially negating the role ofcqgnitive reason in ituitive human decision making Combinig these three behavioral insights-that of the realist the psychologist, and the neurobiologist-seems to undercut the classical justification for judicial review by unelected judges. If intuitive ideology rather than reasoned application of rules controls much judicial decision making, then the Supreme Court has no more authority to issue biding interpretations of the Constitution than those branches of government whose ideological leanings are more directly subject to political controls. Nevertheless, the Supreme Courts structural role as a potential restramt on unconstitutional government action and as the ultinate arbiter of constitutional disputes, together with institutional and political restraints on judicial activism, leaves an essential practical role forjudicialreview in the US. constitutional system. I. INTRODUCTION......................1.8.2...........182 II. FORMALISM, REALISM, AND THE PROBLEM OF INDETERMINACY ............................... 185 III. SEARCHING FOR THE DETERMINANTS OF AN INDETERMINATE SYSTEM OF LAW: THE ROLE OF MORAL INTUITION AND THE CONUNDRUM OF FREE WIL....................... 195 IV RECONCILING MORAL INTUITIONIST REALISM WITH JUDICIAL REVIEW: THE STRUCTURAL ROLE OF THE SUPREME COURT IN UNITED STATES CONSTITUTIONAL GOVERNMENT ................................. ..... 204 * 0 2011 Karl S. Coplan. Professor of Law, Pace University School of Law; J.D. 1984, Columbia Law School; B.A. 1980, Middlebury College. This Essay was originally presented at a conference in honor of Professor Murray P. Dry, Department of Political Science, Middlebury College. I would like to thank my colleagues John Humbach, Merril Sobie, and Steven Goldberg for their review and insightful comments on an earlier draft of this Essay, and my research assistant, Nicholas Goldstein, for his tireless efforts cite checking and proofreading the Essay. 181

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most