The Majority Opinion as the Social Construction of Reality: The Supreme Court and Prison Rules

Source: (2000) Oklahoma Law Review. 53: 161.

James Robertson begins this essay with observations on the nature of United States Supreme Court rulings. According to the “rule of lawâ€? tradition, the Supreme Court discovers the meaning of the Constitution and its Amendments through a closed system of general, impartial, and fixed rules. However, Robertson believes, this masks the real dynamics of judicial decision-making. Supreme Court rulings are more than interpretations of the Constitution; they are authoritative constructions of social reality. With this in mind, he argues that the Supreme Court has constructed as social reality a set of assumptions about imprisonment that renders inmates unworthy of meaningful, constitutional safeguards. To make his argument, Robertson describes the evolution of the prison; recounts the Supreme Court’s review of prison rules; contends that the Supreme Court approach rests on a distorted view of the prison; and proposes three operational principles that should guide the courts in reviewing prison rules.