Constitutional Process

This is the first comprehensive analysis of how the collective nature of Supreme Court decision making affects the transformation of the justices' preferences into constitutional doctrine. Analyzing the Supreme Court from the perspective of social choice theory, Maxwell L. Stearns offers new insights into Supreme Court decision making that have profound implications for understanding the outcomes in a number of cases and the resulting doctrinal development within constitutional law which traditional analyses have proven ill-equipped to explain.

The book models several important process-based Supreme Court rules, including outcome voting, the narrowest-grounds rule, stare decisis, and justiciability, with a particular emphasis on standing. These doctrines have each had a significant impact upon the evolution of modern constitutional law, including but not limited to the following areas: affirmative action, school desegregation, racial gerrymandering, obscenity, and abortion. Each model is presented in nontechnical language with several concrete illustrations drawn from recent Supreme Court case law.

The book offers a new understanding of two apparently paradoxical situations: first, cases in which there are separate majorities on specific issues in the case that suggest, logically, that there should be a majority for the dissenting result; and second, cases in which discrete minorities—as opposed to the apparent majority—control the identification and resolution of dispositive case issues. In addition, the book sheds new light on why the Court employs stare decisis, even though the doctrine grounds the evolution of legal doctrine on the order in which cases are presented and decided, and on how the modern standing doctrine ameliorates the incentives for interest groups to time the litigation of cases in a way that will exert a disproportionate influence over the direction of constitutional doctrine.

This book will appeal to scholars of the Supreme Court or judicial decision-making. It should also be of interest to students of social choice and of law and economics who have not previously considered the Supreme Court or constitutional law as fertile ground for their disciplines.

Maxwell L. Stearns is Professor of Law, George Mason University School of Law.

Praise / Awards

• "Constitutional Process is a fascinating exploration of how the Supreme Court makes law. . . .Peppered with key insights about substantive constitutional doctrine, Stearns' intricate yet elegant argument is a fresh and compelling contribution to the study of judicial process."
  —Evan Caminker, University of Michigan Law School
  
• "Social choice theory, originally intended as part of normative analysis, has turned out to be useful in analyzing political processes. Stearns has brilliantly analyzed the implications for Supreme Court decisions, particularly those with constitutional implications. His analysis is marked by rich and specific detail, combined with a broad theoretical understanding."
  —Kenneth J. Arrow, Nobel Laureate ub Economics, Stanford University
  
• "In this gracefully written study, Max Stearns demonstrates the high value of using social choice theory to examine decision making in the U.S. Supreme Court. . . .This is a mature, important, and highly original contribution."
  —Thomas S. Ulen, Alumni Distinguished Professor of Law, University of Illinois College of Law
  
• "The author offers new insights into Supreme Court decision-making that have profound implications for understanding the outcomes in a number of cases and the resulting doctrinal development within constitutional law that traditional analyses have proven ill-equipped to explain."
  —Hispanic Outlook, February 12, 2001
  
• ". . . Stearns does a far better job than most of melding traditional case analysis with insights from social choice theory. The result in a work that should draw the attention of lawyers, economists and political scientists interested in American constitutional processes."
  —Christopher Zorn, Emory University, Law and Politics Book Review, February 2001
  
• "Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing 'social choice' economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness. . . . Professor Stearns's thesis is radical, for it compels us to look at constitutional law in an entirely new way. At the same time, however, his approach is conservative because it depends on the pre-Realist premise that constitutional 'law' consists of binding legal rules that the justices try to interpret and apply in a principled way."
  —Tracey E. George, Northwestern University, and Robert J. Pushaw, Jr., University of Missouri, Michigan Law Review, May 2002