… Just think back two years, to the run-up to the Supreme Court’s argument and decision in the Affordable Care Act case. Pollsters wanted to know whether people expected the justices to base their decision on “ideology” or “law.” Presented with this either-or choice, most said ideology while a smaller number said law.
It was one of Robert Dahl’s many insights to conclude not only that it’s both, but that a melding of law and politics is to be expected rather than feared or deplored. “It is an essential characteristic of the institution that from time to time its members decide cases where legal criteria are not in any realistic sense adequate to the task,” he wrote.
For understanding the Supreme Court’s behavior, Professor Dahl proposed what became known as the ruling-regime thesis. His observation was that “the policy views dominant on the court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.” CONT.
Linda Greenhouse (Yale Law School), New York Times