Public Reason and Justification in the Courtroom
![handle is hein.journals/jrllpc1 and id is 113 raw text is: Journal of Law, Philosophy and Culture, Vol. I, No. 1 (2007), pp. 107-134
Public Reason and Justification in the
Courtroom
JEREMY WALDRON+
[l]n discussing constitutional essentials and matters of basic justice we are not to appeal
to comprehensive religious and philosophical doctrines--to what we as individuals or
members of associations see as the whole truth.'
[T]he ideal of public reason applies ... in a special way to the judiciary and above all to
a supreme court in a constitutional democracy with judicial review. This is because the
justices have to explain and justify their decisions as based on their understanding of the
constitution and relevant statutes and precedents.... [T]he court's special role makes it
the exemplar of public reason.2
We reason together in public about the decisions we face, especially the decisions we
face as a collective. These decisions are momentous, partly because many of them,
once made, will be backed up with force, with people being required to contribute to
them, to play their part in them, or to submit to them whether they believe in them or
not. And they are momentous also because of what is at stake in these decisions: they
are matters of life and death, liberty and confinement, the prosperity or the suffering
of thousands, perhaps millions of people. As we embark on the process of making
these decisions together, how do we respect this momentousness in its various
dimensions? Our answer to this question is our theory of public reason.
Decisions like these are faced and reasoned about in various settings-in the
context of various forums, practices, and institutions. John Rawls drew attention to
the importance of the variety of institutional settings for the exercise of public reason
when he suggested, at the end of his discussion of public reason in Political
Liberalism, that the Supreme Court of the United States might be regarded as an
exemplar of public reason.3 That claim is the topic of this paper. To understand
Rawls's claim, we need to understand, first, what Rawls's theory of public reason
amounts to, and secondly, how deliberation in the Supreme Court is supposed to
I University Professor, New York University School of Law. Earlier versions of this paper were presented at a
symposium on 'The Idea of Public Reason: Achievement or FailureT' at The Catholic University of America, Washington
DC, at a Public Law Lunch at Columbia Law School, at a faculty workshop at Chicago-Kent School of Law, Illinois
Institute of Technology, and at a workshop at Princeton University. I am grateful to all the participants for their comments
and suggestions.
JOHN RAWLS, POLITICAL LIBERALISM 224-25 (1 st ed. 1993) [hereinafter PoLITICAL LIBERALISM].
2 Id. at 215-16.
I Id. at 216.](ViewImageLocal?handle=hein.journals/jrllpc1&div=11&collection=&method=preview&ext=.png&size=3)
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Public Reason and Justification in the Courtroom
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