For the Right Reasons: The Rules of the Game for Institutionalists

The United States judiciary demonstrates better than any other constitutional institution the inherent fragility of American democracy. There is a reasonable debate to be had over when and exactly how the Supreme Court squandered the precious legitimacy on which its very existence rests. Yet, today, observers must confront with renewed urgency the impact crater of discontent that has been driven into the institution. The Court has been weaponized, politicized, and villainized; it has been lionized for its institutional heft. But increasingly loud voices have called for foundational reforms. There is a scramble for solutions to check the Court’s newly-emboldened right-wing majority and their ruthless quest to destroy long-standing legal precedents. Some have questioned whether a countermajoritarian enterprise such as the Supreme Court ought to exist. Standing amidst that crucible are the nine Supreme Court Justices and the consequences of their decisions. It is here, at this discordant juncture, where understanding why and how Justices make decisions reveals peculiar insights into the judiciary’s role in American democracy. It is also a place to investigate the primary motivation for Justices that observers have called “institutionalist”—that is, jurists for whom the above legitimacy crises animate their judicial philosophy. This Note begins and ends with a curiosity into institutionalism as a legal and political phenomenon. For the institutionalist, the legitimate ends justify the quasi-legal means. Thus, institutionalism represents both a symptom and a cure of our affected judiciary and our fragile democracy. This Note ventures forth into this legal terra nullius. It unpacks the institutionalist ethos by identifying the reasons that such consequentialist choices are made and under which authority. Finally, it offers a compelling justification to accept and respect institutionalist judging: to check the ominous march of authoritarianism and populist demagoguery in the United States and around the world. Conceiving of institutionalism as democracy’s Excalibur sword may raise more questions than it answers. But, this Note asks whether it may represent a budding prospect for global freedom