I found this analysis of how the Supreme Court justices interpret the laws by Adam Feldman at SCOTUSBlog very interesting. Here’s the post’s opening:
In Trump v. CASA, one of the 2024-25 term’s blockbuster decisions, Justice Amy Coney Barrett’s majority opinion frames the dispute around the judiciary’s authority to issue universal injunctions – that is, orders that prohibit the executive branch from enforcing a law or policy anywhere in the country – and sets the tone through a mode of interpretation that blends textualism, originalism, and historical practice. Throughout the opinion, the court warns against transforming the judiciary into an “imperial” branch and highlights the practical consequences of its decision – indicators of what are called structural and pragmatic reasoning.
These interpretive moves exemplify what the Congressional Research Service (CRS) identifies as eight modes of legal reasoning – textualism, original meaning (originalism), judicial precedent, structuralism, historical practice, pragmatism, moral reasoning, and national identity. Though often overlapping in practice, each draws on distinct sources of authority, from grammatical analysis (textualism) to constitutional design (structuralism) to shared civic values (national identity). Given the Supreme Court’s ideological divisions, these interpretive methods serve not merely as tools but as signals of deeper jurisprudential commitments.
He does his best to perform his analysis empirically. He ends up with the following guiding principles: precedent, moral reasoning, originalism (what the law meant to those who enacted it), pragmatism, structuralism (considering the law within the framework of the body of laws and precedents), and textualism (what the law says).
As should not be surprising the various justices use greatly varying principles for interpretation, all of the justices relying on precedent for 15-20% of their opinions. Here’s the whole breakdown:
It’s gratifying that precedent is relatively high on the list but discouraging that it isn’t relied on more than it is. That pragmatism also figures significantly is inevitable.
Structuralism being a significant factor is presumably a consequence of the institutionalists who are appointed to the court whether by Democratic or Republican presidents.
Originalism is probably the factor that distinguishes the right wing of the court from the left most clearly.
It may be shocking but I think there’s little role for moral reasoning in the decisions of the Supreme Court. There are multiple reasons for that. Most importantly, that’s not the job of the court. It’s the job of the Congress. IMO that most of the training that our members of Congress received in moral reasoning was at their mothers’ knees is a grave problem.
I think there is methodological problem in evaluating majority and non-majority opinions without differentiation.
Majority opinions in many cases require the writer to make adjustments to win the approval of other justices with different preferences. Roberts can be a chameleon and suppress his own preferences, particularly in high profile cases.
Non-majority opinions (concurrences and dissents) don’t necessarily state how the justice would decide the case, but may simply comment on the majority opinion positively or negatively. Sotomayor dissents often critique the majority opinion by alleged consequences. I’m pretty sure that in if she was writing for a majority she would not have moral reasoning as the main point (a fallacy of appeal to consequences), but would extend the reasoning of some Warren Court precedent.
Maybe in broad strokes it explains something, but perhaps looking at more terms would be more helpful in showing changes.
PD Shaw: I think there is methodological problem in evaluating majority and non-majority opinions without differentiation.
That also generally applies to many other binary political systems. The out-party can make strong ideological arguments, while the in-party has to somehow make it work, even if it means tempering ideology. In addition, majorities, being larger, are more likely to experience centrifugal forces, which also requires compromise. Conversely, the smaller the minority, the more distant from power, the more purely ideological they can be. Trumpism is a notable counterexample, however.